RAM SARAN Vs. L BIR SEN AND OTHERS

JUDGEMENT

(1.) This is an appeal from a decree passed by the courts below for ejectment from an accommodation governed by the UP Control of Rent and Eviction Act of 1947. The Appellant had not paid rent for eight months prior to May, 1953 and the Respondents gave a notice to him to pay the arrears. He paid arrears of only six months and not of all the eight months. Thereupon, the Respondents gave another notice to him terminating his tenancy on the ground of his being in arrears for more than a month and for not paying them with in one month of the notice demanding the payment. After terminating the tenancy the Respondents filed the suit against him in 1953 for ejectment. The Appellant had paid up the balance of the arrears of two months rent before the suit and, therefore, there was no claim for arrears of rent. During the pendency of the suit the UP Control of Rent and Eviction Act was amended by Act XVII of 1954, with effect from 1-10 54, and the period of one month mentioned in the first clause of S. 3 (1) (a) was increased to three months. The suit was contested by the Appellant on the ground that his default was not willful and that the Respondents had waived the notice demanding the arrears. The courts below held that the default was wilful and that there was no waiver on the part of the Respondents and decreed the suit for ejectment.

(2.) It was contended on behalf of the Appellant that under the amended S. 3 (1) (a) a suit can be filed without the permission of the District Magistrate for ejectment of a tenant only if he was in arrears of rent for more than three months and had failed to pay the same to the landlord within one month of the service upon him of a notice of demand. The phrase "in arrears of rent for more than three months" means that arrears remain outstanding for more than three months and not that three months rent remains in arrear. Whatever may be amount of the arrears and whatever may be period for which they fell due, if they remain unpaid after falling due for more than three months it would be a case of the tenant's being in arrears of rent for more than three months; it would not be necessary for him to be in arrears of at least three months rent. Rent falls in arrear on the date on which it falls due and is not paid; if it is not paid for one month after having fallen due it is a case of tenant's being in arrears of rent for one month. If it is not paid for three months after having fallen due it is a case of his being in arrears of rent for three months. When the rent falls due depends upon the contract between the parties; it need not fall due every month. It may fall due once in six months or once in a year or once in five years. So long as it does not fall due it cannot be said to be in arrear. Therefore, the words in Sub-Section 1 (a) cannot refer to the period to which the unpaid rent pertained because if the rent is not required under the contract to be paid every month the rent of three months can never be in arrear. In the present case eight months rent was due from the Appellant and he paid six months rent in compliance with the first notice given in may, 1953. The period for which the rent was due is not known but it may be assumed that it was for the period 1-9-1952 to 30-4-1953, if not for an earlier period. The Appellant did not appropriate the payment made by him in compliance with the first notice; he just sent an amount equivalent to six months rent. It was open to the Respondents to appropriate the payment to any period they liked; they could appropriate it towards the period 1-11-1952 to 30-4-1903 leaving the arrears of September and October, 1952 still due. Had they done so the Appellant would have been in arrears of rent for more than three months and would have been liable to be ejected on account of his failure to pay them within one month of the first notice even if the amended S. 3 (1) (a) applied in the present case. But there is no evidence of any appropriation done by the Respondents. Since they realised the arrears of two months rent in July 1953, the arrears ceased to exist and now it is impossible to determine for which two months the Appellant failed to pay rent. If he failed to pay rent for March and April, 1953 and if the case was governed by the amended section, even then he would have been liable to be ejected, if he remained in arrears for more than three months and failed to pay them within one month of the service upon him of a notice of demand. He paid these arrears in July, 1953; the arrears of rent for the month of March, 1953 remained pending for three months on 1-7-1953; the rent of March, 1953 became in arrears on 1-4-1953, on 1-5-1953 the arrear was one month old and on 1-7-1953 it was three months old. In response to the second notice the Appellant paid all the arrears for the period ending 30-6-1953; this means that he paid the arrears on or after 1-7-1953. In other words he had been in arrears of rent for the month of March, 1953 for more than three months. But he was not given any notice by the Respondents after he had been in arrears of rent for more than three months; the second notice had been given to him in June, 1953 when he had not been in arrears of rent for the month of March, 1953 for more than three months. U/S. 3(l)(a) the notice demanding the arrears must be served after the arrears have been of more than three months duration. Therefore, if the Amending Act governed the facts of the present case the Appellant could not be ejected.

(3.) The suit had been instituted when the law was that a landlord could file a suit against a tenant who is in arrears of rent for more than one month and had failed to pay the same within one month of the service upon him of a notice of demand. The Appellant was admittedly in arrears of rent for more than one month and had failed to pay them within one month of the service upon him of a notice of demand. The rent of March, 1953 fell due on 1-4-1953 and on 1-5-1953 the Appellant was in arrears of rent for more than one month. The Respondents served upon him a notice of demand to pay the arrears in May, 1953 and he failed to pay them within one month of the service of the notice. Therefore, the Respondents had a right to file the suit against him and the suit was validly filed. The subsequent amendment in S. 3 during the pendency of the suit did not affect the suit validly filed by them. S. 3(1)(a) only deals with the institution of a suit and not with passing a decree in a suit already instituted; it only imposes a condition on the institution of a suit and once a suit is instituted after fulfilling the condition the section exhausts itself and the court trying it is no longer concerned with it. Once the Respondents had the right to institute the suit and exercised it, they could not be divested of it by the subsequent amendment in the section, and the trial court was bound to proceed with the suit regardless of the subsequent amendment. The subsequent amendment was not retrospective in effect and did not govern suits instituted validly under the law in force when they were filed but which could not have been instituted validly under the amended provision. It was contended that as the Act was amended during the pendency of the suit, S. 15 would apply and that the suit must be deemed to be pending on the date when the Act was amended. Section 15 refers to only those suits that were pending on the date of the commencement of the U. P. Control of Rent and Eviction Act of 1947. It is provided in S. 1(3) that the Act shall be deemed to have come into force on 1-10-1946. Therefore S. 15 refers to suits that were pending on 1-10-1945 and not on any other date. The amendment in S. 3 did not alter or affect the date of commencement of the Act mentioned in S. 15; inspite of the amendment the date of the commencement of the Act remained as it was prior to the amendment. Since the present suit was not pending on 1-10-1946, S. 15 did not apply to it even after the amendment. As the amendment was nor retrospective in effect the trial court was bound to decide the suit regardless of the amendment in the law regarding the condition on which a suit could be instituted.