MAHFOOZ HASAN Vs. HARISH CHANDRA SAHAI

JUDGEMENT

(1.) The plaintiff-revisionist filed a suit for ejectment of the defendant-opposite party from House No. D-61, Maha Nagar Extension, Lucknow and for recovery of Rs. 2950.00 as arrears of rent from 9-4-1980 till 24-1-1981 and mesne profits from 25-1-1981 at the rate of Rs. 300/- per month. The contention of the plaintiff is that the accommodation in suit was let out to the defendant on a monthly rent of Rs. 300/- per month. The tenancy started on 9-10-1977 and according to the plaintiff the defendant paid rent up to the period 8th April 1980 and thereafter stopped payment of rent as he wanted to pay to the plaintiff the rent at the rate of Rs. 150/- per month only which the plaintiff refused to accept being not the monthly rent of premises. Since the defendant fell in arrears of rent, so the plaintiff issued registered notice dated 20th Dec. 1980 under S.106 of the Transfer of Property Act through his counsel, which was served on the defendant on 26-12-1980 whereby he was called upon to pay the arrears of rent from 9-4-1980 till 8-12-1980 within a period of one month from the date of service of notice and also requiring him to quit and vacate the premises on the expiry of one month from the date of the receipt of notice. The defendant contested the notice and in his reply dated 20th January, 1981 reiterated his stand that the rent of the premises was Rs. 150/- per month and not Rs. 300/- as claimed by the plaintiff. Since the defendant failed to comply with the notice and did not vacate the premises, and, as such, the plaintiff filed the suit for ejectment and arrears of rent and damages on 24-2-1981.

(2.) The defendant contested the suit with the allegations that he is tenant in the accommodation in question from 9th Oct. 1977 on a monthly-rent of Rs. 150/- per month. The premises were not let out on a monthly rent of Rs. 300/- but the agreed rent is Rs. 150/- per month which the defendant asserted to have been paying regularly. The defendant admitted service of notice on him sent by the plaintiff, to which reply was sent by him asserting that the agreed monthly rent was Rs. 150/- and not Rs. 300/- as claimed by the plaintiff. In the additional pleas it has been averred that earlier to it the defendant had made several requests to the plaintiff to carry out annual whitewashing but he did not pay any heed to it and so a notice dated 7th April, 80 was sent to the plaintiff on 12-4-1980, but it was returned as 'refused'. It annoyed the plaintiff and he had, therefore, given registered notice dated 19-4-1980 calling upon the defendant to vacate the premises as he required for his own use. A reply to this notice was also sent to the plaintiff. It has further been averred by the defendant that when the plaintiff refused to accept the rent sent to him for the months of April and May, 1981 the same was deposited in the court of Munsif South, Lucknow under S.30 of the Act No. 13 of 1972 and thereafter the monthly rent is regularly deposited in that court and the plaintiff is aware of it. In para 11 of the written statement it has further been averred that the plaintiff in his notice for ejectment and arrears of rent dated 20th Dec. 1980, had demanded the monthly rent at the rate of Rs. 300/- per month. Since the rate of rent was disputed and so the defendant moved an application on 28-1-1981 to the Additional District Magistrate (Civil Supplies), Lucknow for settling the dispute and for fixing standard rent as required under the U.P. Act No. 13 of 1972 and in those proceedings plaintiff had put in appearance and had filed his objection. The defendant thus asserted in para 13 of the written statement that he never wanted to withhold the rent due from him. The defendant deposited rent for the period from 9-3-1981 to 30th May, 1981 which alone was due against him at the rate of Rs. 150/- per month together with 9% interest thereon. The defendant also claimed adjustment of the amount deposited by him in the court of Munsif South, Lucknow. It has, thus, been asserted in para 15 that at the time of filing of the present suit there was no rent due as the last rent was deposited for the period 9-1-1981 to 8-2-1981 in Misc. Case No. 229 of 1980 before the Munsif South, Lucknow. Thus with these allegations the defendant has asserted that the suit is liable to be dismissed.

(3.) After taking evidence of parties the suit was decreed by the learned III Additional District Judge, Lucknow, vide judgement and decree dated 15-1-1982 by recording a finding that the agreed rent of the premises in dispute was Rs. 300/- per month. It had, thus, been held that since the defendant had not deposited the full arrears of rent at the said rate of rent within the statutory period and thus clear default has been committed by the defendant. And with these findings the plaintiff's suit was decreed for the ejectment of the defendant and for the arrears of rent together with pendente lite and future damages at the rate of Rs. 300/- per month.