MST. INDRASANI Vs. DIN ALI

JUDGEMENT

(1.) WE have had the advantage of reading the judgment of our learned brother B. Dayal, J. but regret our inability to agree with the opinion expressed by him. We now proceed to give our reasons for the view we have taken of the case.

(2.) ALL the material facts have been set out in detail in the judgment of B. Dayal, J. and need not be repeated. The rent for the accommodation payable by the tenant Din Elahi was Rs. 3/8/ - p.m. There being no special contract, Rs. 3/8/ - on account of rent would fall due on the expiry of each month and become payable in each succeeding month. It was alleged by the Plaintiff that the Defendant had not paid rent for the months of March, April, May and June, 1958. On 7 -7 -1958 the Plaintiff gave a composite notice to the Defendant demanding payment of the arrears of rent for the period March to June, 1953, and also terminating the tenancy. It has been factually found that the Defendant had sent Rs. 3/8/ - by money order in the month of May, 1958 and another sum of Rs. 7/ - by money order in the month of June, 1958 and that both these money orders were refused by the Plaintiff. It is also an admitted fact that after service of notice dated 7 -7 -1958 the Defendant did not actually pay or remit by money order the amount demanded by the Plaintiff on account of arrears of rent for the period March to June, 1958. The question of law which arises on these facts and for the consideration of which the Full Bench was constituted is whether Din Elahi was a tenant in arrears of rent for more than three months so as to come under the mischief of Section 3(1)(a) of the UP (Temp.) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the Act). It is, therefore, necessary to examine the language of Section 3(1)(a) of the Act, which is reproduced below:

(3.) LEASE is created by a combination of contract, and conveyance. Section 4 of the Transfer of Property Act itself provides that the chapters and sections of that Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872. Therefore, in so far as the contractual part of the lease is concerned, the provisions of the Contract Act may also be examined apart from the provisions contained in the Transfer of Property Act. Section 37 of the Contract Act provides that the parties to a contract must either perform or offer to perform their respective promises, unless such performance is dispensed with or excused under the provisions of that Act, or any other law. Section 38 of the said Act further provides that when the promisor has made an offer of performance of the promise, and the offer has not been accepted, the promisor is not responsible for the nonperformance nor does he thereby lose his rights under the contract. The offer to perform the promise must be unconditional and must be made at proper time and place. Under Section 46 of the same Act a promisor is required to perform his promise within a reasonable time in cases where the promise is to be performed under the contract without application by the promisor and no time for performance is specified. In the case of a lease, the payment of rent rests on the promise of the lessee to periodically pay rent as agreed with the lessor. Therefore, apart from the provisions of Section 108 of the Transfer of Property Act, even under the Contract Act, the lessee is bound to perform his promise to pay rent and this promise may be discharged either by actual performance or by offer of performance in accordance with the provisions of the Contract Act referred to above. So, a lessee who has proved that he had tendered rent which had fallen due to the lessor cannot be said to be in arrears of rent. Tender under certain circumstances must perforce be held to be tantamount to payment. Only by holding so can the anomaly which otherwise would result be avoided and the various provisions of the Act, the Contract Act and the Transfer of Property Act be harmoniously construed.