ABDUL GAFOOR Vs. ABDEALI

JUDGEMENT

(1.) THIS is a reference by a Single Bench (S. B. Sen J.) on two problems arising in this appeal which is one by the tenant-defendant in house accommodation against the landlord respondent. While the complete picture of the appeal is in the record before the Single Bench, the two questions which are the subject-matter of the reference have arisen in the following circumstances. One of the grounds of defence set up by the defendant is that the quit notice which was the basis of the suit had been waived by the landlord who issued a second notice to the same effect after the disposal of the suit and before the filing of the appeal. Accordingly the defendant-tenant contended that this suit would fail in any case, though it would be open for the plaintiff if he chooses to bring a fresh suit. The second question is the finding by the first appellate Court that the defendant-tenant bad not really qualified for the benefit given to him by section 13 (1) of the Accommodation Control Act as he had not tendered the entirety of the amount "calculated at the rate of rent at which it was paid for the period for which he had defaulted including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment was made". The tenant no doubt had tendered for payment the entire sum claimed in the suit by the landlord which, as often happens, fell short of the total defaults because a number of payments had got time barred. The questions accordingly are,-first, (i) whether in the circumstances of this case-which will be set out in time-the plaintiff (respondent in second appeal) had disqualified himself from getting a decree of ejectment because he had issued a fresh notice after the dismissal of the suit and this amounts to a waiver ; secondly, (ii) whether a tenant tendering or paying "the amounts in default calculated at the rate of rent" in respect of the accommodation gets the benefit of that provision by tendering or paying only the amounts legally due, that is, amounts for which a suit could be brought, or whether he has to deposit or tender the entire amount in default including such monthly payments as have got barred by lapse of time. Effect of a subsequent notice: Question (1):

(2.) THE law applicable to the subject is contained in section 111 (h) and section 113 of the Transfer of Property Act. THE former provides for the issue of a notice determining the lease or to quit or of the intention to quit the property leased duly given by one party to the other. We are in the instant case concerned with a notice issued by the landlord determining the lease and asking the tenant to quit. Section 113 provides-

(3.) COMING to the second question, section 13 (1) of the Madhya Pradesh Accommodation Control Act of 1961 is broadly analogous to section 114 of the Transfer of Property Act. The main difference is that under section 114 the Court may in lieu of decreeing ejectment pass an order relieving the lessee against the forfeiture, whereas compliance with section 13 (1) unconditionally saves the tenant from an order of eviction in view of section 12 (3) of the same Act: