GANGA PRASAD Vs. CHEDI LAL

JUDGEMENT

(1.) THIS is a landlord's second appeal for ejectment and arrears of rent etc.

(2.) THE building consists of several tenements and is occupied by a number of tenants including the defendant respondent, who has been in occupation of two tenements-one on payment of Rs. 12.50 per month and other on payment of Rs. 10/- per month as rent. Rent from April 1, 1964 fell into arrears. The plaintiff, thereupon, served two separate notices on the defendant demanding arrears of rent from April 1, 1964 and terminating the tenancy in respect of the two tenements occupied by the defendant respondent. The notices were served personally on the defendant respondent on February 6, 1965. In reply, the defendant respondent informed the plaintiff appellant that the rent for the period April 1,1964 to January 31, 1965 had been deposited by him in the Nagar Mahapalika towards house and water taxes. Plaintiff appellant's case was that only the amount of Rs. 90.11 deposited on February 20, 1965 was towards the house and water taxes and the other sums alleged to have been deposited by the defendant were in respect of excess water charges. By an amendment in the plaint it was further pleaded by the plaintiff appellant that he was served with a notice of demand dated December 17, 1963 regarding properly taxes (house tax and water tax) and Rs 386 35 on account of excess water tax The plaintiff alleged that he deposited Rs. 342/- as property tax for the period April 1, 1963 to March 31, 1964 but the water supply was disconnected for non-payment of excess water charges. It was also the case of the plaintiff that the defendant had admitted the liability for payment of excess water charges. The liability of the several tenants was in proportion to the rent payble by them in respect of their tenements. The plaintiff claimed Rs. 91.78 as arrears of rent in respect of one tenement and Rs. 72.53 as arrears of rent in respect of the other tenement besides damages for use and occupa­tion after the date of termination of the tenancy.

(3.) THE court of I Additional Munsif, Kanpur who tried the suit, framed as many as 8 issues. Issue no. 1, which was whether the suit is bad for mis-joinder of causes of action, was tried as a preliminary issue and was decided in the negative against the defendant. On issue nos. 2, 5 and 8 the Trial court held that the defendant respondent was liable to pay the charges for excess water consumed, to the plaintiff appellant, that the payment of excess water charges to the Nagar Mahapalika was in discharge of his own liability to pay a part thereof and the defendant respondent could not, therefore, claim any adjustment of the amount deposited towards the excess water charges either from the future rent or from (he arrears of rent, and that excess water charges are not included within the definition of properly tax and was, therefore, not liable to be adjusted towards the rent. In the context of this issue it was found by the trial court that no order of attachment of rent was passed by an authority competent to do so on behalf of the Nagar Mahapalika and what appear to have happened was that an application was moved on July 4, 1964 on behalf of the tenants of the building to have the water connection restored as the same had been disconnected for non-payment of excess water charges. In that application the tenants offered to pay excess water charges to the Nagar Mahapalika by instalments and in the opinion of the learned Munsif they thus invited attachment of the rent. He found that there was no order of attach­ment in writing No notice of demand was sent to the plaintiff appellant to pay the property taxes before the attachment of the rent and that the notice attaching the rent was illegal. On issue no. 6 it was held that there was no evidence to show that defendant respondent spent anything on restoration of the water connection. On issue no. 4 the learned Munsif held that the defendant respondent failed to pay the arrears of rent for more than three months when the demand for payment of the same was made him. He was, thus, a defaulter. On issue no. 7 it was held that the defendant was liable to eviction and to pay Rs. 388.75 in all on account of rent and damages for use and occupation. The suit was, accordingly, decreed for ejectment of the defendant from the premises in suit and for recovery of Rs. 388.75 as also pendente lite and future damages at the rate of Rs. 22.50 per month with pro­portionate costs.