AHMAD HUSAIN Vs. MOHAMMAD NABI

JUDGEMENT

(1.) THIS is a defendant tenant's second appeal against a decree for ejectment, arrears of rent and pendenti lite and future damages. It has been found that the defendant was a tenant of the accommodation and the plaintiff was the landlord. The plaintiff had filed a suit no. 444 of 1967 in the court of the Judge, Small Cause Court, Bareilly for arre ars of rent in which a decree, which became final, was passed against the defendant. The decretal amount was Rs. 253.75 P. The plaintiff's case was that the defendant had not paid the decretal amount and he had further not paid rent due from 30.4.1968. It has been found that the plaintiff served a composite notice of demand and a notice under section 106 of the Transfer of Property Act terminating the defendant's tenancy dated 20th March, 1969, whereby he demanded the payment of the arrears including the decretal amount up to date. After the receipt of the notice the defendant sent a money order for Rs. 54 which was received by the plaintiff. The two courts below held that not only was the plaintiff entitled to the arrears of rent, for which a decree had also been passed, but also for the current arrears of rent. Having found that the amount of Rs. 54/- which was sent by the defendant did not include the entire arrears of rent due by the defendant and the said arrears amounted to more than three months' rent, the suit for ejectment had been decreed. The learned counsel for the appellant has submitted that he plaintiff could not have got a decree for ejectment as the current arrears had been paid by the money order for Rs. 54/- sent by the defendant, which was received by the plaintiff. It is further submitted that the cause of action for arrears for which a decree had already been passed had ceased to exist and, as such, the plaintiff could not add those arrears in the notice of demand. He, submits, therefore the judgment of the lower appellate court is erroneous in law. In the case of Bihari lal v. Babu Ram (1964 A. L. J. 458), a Division Bench of this High Court held that the arrears of rent which the landlord is entitled to demand under clause (a) of Section 3(1) include not only those arrears which can be recovered through a court, but also those also whose realisation of which has become barred by time. It has further been held that if the tenant does not pay up all the arrears, including the time barred arrears, he would be liable to ejectment at the instance of the landlord, if after the service of a notice of demand, the defendant tenant does not pay up all the arrears including those which are time barred, within one month of the service upon him of a notice of demand. In this case the plaintiff stands on a better footing. Substantial arrears of rent had been decreed. The decretal amount had not been paid. If, even the time barred dues have to be paid by the tenant in order to get the protection of the provisions of the U. P. (Temporary) Control of Rent and Eviction Act, it is evident that the arrears of rent for which a decree had been passed; should also be paid up by the tenant after the receipt of a notice of demand, if he is to get the protection under the provisions of the U. P. Temporary Control of Rent and Eviction Act. Consequently it must be held that the judgment of the lower appellate court suffers from no error of law. In the result, the appeal fails and is dismissed with costs. The interim order of this court dated 30.1.1973 as confirmed on 20.8.1974 is vacated. The decree for eviction will be executable after a period of three months to enable the tenant to make alternative arrangements.