BISHAMBHAR KRISHNA KOTHARI Vs. DEVI DUTT

JUDGEMENT

(1.) This defendants revision-application under Sec. 115, C. P. C. is directed against the judgment and decree of the Additional District Judge setting aside the judgment of the trial court and decreeing the plaintiffs suit for recovery of arrears of rent and ejectment against the defendant-applicant.

(2.) The defendant-applicant has been tenant in the house of plaintiff-opposite party on a rent of Rs. 75/- per mensem. In 1973, the plaintiff-opposite party filed suit No. 66 of 1973 for recovery of arrears of rent and ejectment against the defendant. The defendant contested the suit and deposited the entire arrears of rent and he further continued to deposit the monthly rent as and when due in the court of small causes in pursuance of O. XV, R. 5, C. P. C. On 2nd Aug., 1975, the Judge small causes Court decreed the plaintiffs suit for recovery of arrears of rent but he dismissed the plaintiffs suit for ejectment of the defendant. The Judge, Small Causes observed in his judgment that the defendant had paid rent for the period from 16th Aug., 1972 to 16th Aug., 1975. The suit was further dismissed on the ground that the notice under Sec. 106 of the Transfer of Property Act was invalid. The party did not file any appeal against the judgment and decree of the Judge, small causes dated 2nd Aug., 1975 and it became final.

(3.) The plaintiff-opposite party, however, filed another suit No. 3 of 1976 in the Court of Judge, Small Cause Court for recover arrears of rent and ejectment against the defendant out of which the present proceedings have arisen. The plaintiffs case was that the defendant was in arrears of rent from 13-4-1973 to Oct., 1975 and, as such, he was liable to ejectment. The defendant contested the suit and asserted that he had deposited the rent from Aug., 1972 to Aug., 1975 in Suit No. 66 of 1973 for the plaintiffs benefit, as such, he was not a defaulter. He further asserted that he had tendered rent for the months of Sept. and Oct., 1975 by money order to the plaintiff-opposite party but he refused to accept the same. Thereafter he hag been depositing the rent in the Court.