DEBI PRASAD Vs. JIA LAL

JUDGEMENT

(1.) THIS appeal by the defendant arises out of a suit filed by the plaintiff-respondents for eviction of the defendant from the premises in suit and for recovery of arrears of rent and damages. One Budhai was the landlord of the said premises. He let out the premises on 24-1-1965 at a monthly rent of Rs. 15.00. Budhai died on 30-4-1965. His heirs executed a sale-deed in favour of the plaintiffs on 9-7-1965. The plaintiffs gave a notice dated 8-3-1966 to the defendant, which was served on him on 9-3-1966, claiming rent for the period from 9-7-1965 to 8-3-1966 amounting to Rs. 120.00. The tenancy of the defendant was also determined by that notice. According to the plaintiffs, the defendant failed to comply with the requisities made in the notice. Hence they filed the suit for the aforesaid reliefs.

(2.) THE suit was contested by the defendant on the ground inter alia that he had not committed default in payment of rent within the meaning of Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act 3 of 1947. It was averred that the defendant had remitted a sum of Rs. 36.00 by money order to the plaintiffs on 1-1-1966 towards the rent for the period from 24-8-1965 to 23-11-1965 deducting a sum of Rs. 9.00 which the defendant claimed to have spent towards repairs. That money order was refused by the plaintiffs on 13-1-1966. Whereupon the defendant deposited a sum of Rs. 66.00 in the court of Munsif under Section 7-C of the said Act towards rent for the period from 24-8-1965 to 23-1-1966 after deducting the said sum of Rs. 9.00 said to have been spent in carrying out repairs. THE court served a notice on the plaintiffs in respect of the said deposit on 23-3-1966. In the meanwhile the plaintiffs had, as pointed out earlier, served a composite notice of demand of rent and determination of tenancy on the defendant on 9-3-1966. THE defendant maintained that he was not in arrears of rent for more than three months, that is, for four months when the said notice was given by the plaintiffs determining his tenancy and demanding arrears of rent, hence the suit for eviction was not maintainable.

(3.) THE principal question involved in this appeal is whether a suit for eviction would lie against a tenant if he fails to pay within one month of the service of notice of demand for arrears of rent for a period of three months and few days and not for four months or more than four months. In the instant case it was not in dispute before us that the defendant was in arrears of rent for three months and few days and not for full four months or more than four months when the notice dated 8-3-1966 was served on the defendant on 9-3-1966. THE defendant, as stated earlier, had remitted rent for three months after deducting a sum of Rs. 9.00 towards repairs. This remittance was made by money order which was refused by the plaintiffs on 13-1-1966. THE rent was specifically tendered for the period from 24-8-1965 to 23-11-1965. In view of that refusal to accept the money order, it would be deemed that the rent for the said period was duly tendered and paid to the landlord for the purposes of determining whether the defendant had committed default within the meaning of Section 3 (1) (a) of U. P. Act 3 of 1947. THE defendant had thereafter deposited the rent for the period from 24-8-1965 to 23-1-1966 in the court of Munsif on 31-1-1966. This deposit was also obviously made prior to the service of the notice dated 9-3-1966. THE rent for the period from 24-8-1965 to 23-1-1966, that is for five months, was thus deemed to have been paid in accordance with the law to the plaintiffs. THE plaintiffs had, however, claimed rent for eight months by the notice dated 8-3-1966. THE defendant was thus in arrears of rent for three months. Since the notice was served on 9-3-1966, it was contended that the defendant was in arrears of rent for three months and one day and thus was in arrears of rent for more than three months. Hence it was submitted that he had committed default in payment of rent and the suit for eviction of the defendant was maintainable. This submission was raised before Jagdish Sahai, J., which made him to refer the case to the larger Bench. THE question is, however, concluded by a Division Bench decision of this court in Jitendra Prasad V. Mathura Prasad Darzi, 1960 AWR 153 wherein it was held :-