REOTI PERSHAD Vs. AJAI PAL SINGH AND OTHERS

JUDGEMENT

(1.) This is a defendant's second appeal in a suit for ejectment from a shop, and for recovery of Rs. 1,600.00 as arrears of rent and Rs. 248/- as Bhumi Bhawan Kar. The accommodation was admittedly governed by the U.P. Act No. III of 1947 and the grounds for avoiding the bar of Sec. 3 of that Act were default in payment of more than three months rent and sub-letting of one of the three portions of the shop into which it was divided, by the first defendant to the second, without the plaintiff's consent. The trial court decreed the suit for ejectment and for recovery of Rs. 1,600.00 on account of arrears of rent. The lower appellate court affirmed the decree on appeal. Hence this second appeal by the first defendant. The second defendant had filed a written statement and certain documents, and had also participated in the trial upto the stage of cross examining the plaintiff's only witness (P.W. 1) Vijai Pal Singh, but absented himself at the subsequent stage of the trial and did not lead any evidence, nor did he prove the documents filed by him. He has been impleaded as the fourth respondent, but, wrongly shown as a plaintiff-respondent. Only the first three respondents were the plaintiffs, and were, admittedly, the owners and landlords of the accommodation in suit.

(2.) The plaintiff's case, as set out in the plaint, was that they were the owners of the three shops, each one of them having three petitions, which were tenanted by defendant no. 1 on payment of Rs. 45/- per month as rent ; that without their consent, and illegally and wrongfully, the first defendant had sub-let one of the three shops to the second defendant ; that the first defendant was in arrears of rent since July 1, 1963, which he did not pay in spite of demand made by the notice dated 23rd July, 1969, which was a combined notice of demand and quit and served on the first defendant personally on 30th July, 1969 ; nor did he vacate the shop, instead he sent a false reply ; that rent was not remitted by money order as stated in the reply ; that the first defendant had thus defaulted in payment of rent and was liable to ejectment on that account ; that the first defendant had no right to sub-let the shop but he did sub-let it to the second defendant and on this ground also he was liable to ejectment ; and that the first defendant had not paid Rs. 248/-on account of Bhumi Bhawan Kar. On these allegations the three years rent immediately preceding the date of suit, which was filed on 30th Aug., 1969, amounting to Rs. 1,600.00 and Bhumi Bhawan Kar amounting to Rs. 248/- were claimed against the first defendant, in addition to ejectment of both the defendants from the three shops. There was no specific claim for pendentelite or future damages for use and occupation of the accommodation, although pendentelite and future interest on the amount of Rs. 1600.00 claimed as rent, was claimed.

(3.) The first defendant pleaded in reply that he did not sub-let any portion of the shop to the second defendant ; that cloth business was being carried on in one of the portions of the shop since much before the U.P. Act No. III of 1947 came into force, that formerly the business was carried on under the name and style of Shantan Kumar Shambbu Dayal in partnership; that Shambhu Dayal is the first defendant's son; that Shantan Kumar had for some time past colluded with the plaintiffs and had got the suit filed on false and baseless allegations with a view to secure the portion of the shop in question as his own tenancy ; that the plaintiffs and their predecessors have been seeing the cloth business carried on in a portion of the shop, without raising any objection and are accordingly estopped from objecting to the same on any such ground; that it was wholly wrong to say that the first defendant was in arrears of rent from 1st July, 1963 ; that the first defendant was not in arrears of rent for more than three months when the notice dated 23rd July, 1969 was received by him on 30th July, 1969 and he did not commit any default in payment of rent within the meaning of the U.P. Act, No. III of 1947. It was further alleged by the first defendant in his written statement that he used to supply goods from his shop to the plaintiffs and he also paid cash whenever asked for that the total amount of goods supplied and cash paid between 21st Feb., 1947 to 20th July, 1951 was Rs. 1889/14/3, against which the rent due for the period worked out to Rs. 1,908/-, leaving a balance of Rs. 18/1/9 as due to the plaintiffs ; and that from 21st July 1951 to 20th July, 1969 the amount of goods supplied and cash paid was Rs. 9739/2/3, against which the rent due for that period worked out to Rs. 9,720.00, leaving a balance of Rs. 9/12/9 ; and thus the total sum due and payable to the plaintiffs by the first defendant on the date when the notice dated 23rd July, 1969 was received amounted to Rs. 27/14/6 ; that, however, on receipt of the said notice dated 23rd July, 1969, the first defendant, in order to save his tenancy, tendered the sum of Rs. 3285/- first to Shri Ajai Pal Singh and Vijai Pal Singh, plaintiffs, at Khair, which is the name of the town where the accommodation is situated, and on their refusal to accept, he tendered the same to Shri Munshi Lal Advocate, who had issued the notice dated 23rd July, 1969 on behalf of the plaintiffs; that one of the plaintiffs, namely, Sri Sripal Singh was not at village Bakner, the home town of the parties, and was reported to be at Dehradoon, but the plaintiffs did not disclose his address and the post-office did not accept a money order, addressed to all the three plaintiffs, nor was the Post Office prepared to accept a money-order for any sum exceeding Rs. 1000.00 ; that the defendant could not thus remit the rent by money-orders, and having no alternative, he applied to the court under Sec. 7-C of U.P. Act No. III of 1947 and deposited the sum of Rs. 3,285 on 28-9-1969, which appears to be a typing mistake, for the documentary evidence on the record shows that the application was made on 29th Aug., 1969 and the tender was passed that very day and the deposit appears to have been made in the State Bank of India on 30th Aug., 1969, vide Ext. 4, which is a certified copy of the application under Sec. 7-C, and Ext. A-I, which is the original tender by which the deposit of Rs. 3, 285/-was made. The liability for payment of Bhumi Bhawan Kar was denied and it was asserted that the entire suit was liable to be dismissed with costs.