AMAR BAHADUR THAPA Vs. ABDUL HAI AND ANR.

JUDGEMENT

(1.) THIS reference has come before us as correctness of a Division Bench decision of this Court in Second Appeal No. 165 of 1962 had to be examined.

(2.) THE second appeal in question has arisen out of a suit brought by the Plaintiffs, Respondents herein, for ejectment and for recovery of rent and compensation. It was claimed by the Plaintiffs that the Defendants are liable to ejectment on the ground that they did not deposit the amounts of rent accruing regularly or in time and they continued to occupy the house against the wishes of the Plaintiffs. The plaint itself is not sufficiently clear as to the exact nature of the default although in the Schedule (b) of the plaint compensation is claimed on the basis of rent for the period from 8th June to 31st December, 1960 and thereafter at Rs. 2/ - per day independent of the term of the tenancy. The Defendants, Appellants herein, contended that they offered rent to the Plaintiffs as and, when it fell due but the Plaintiffs deferred to receive the rent on the ground that they were in mourning on account of the death of the father of the Defendants (sic) and that they would receive the rent later. In a similar way the Plaintiffs refused to receive rent for the second and the third month following although the rent was tendered, and when the rent was tendered for the third month the Plaintiffs apparently demanded rent at the rate of Rs. 60 per month, which is an enhanced rent because the rent as per tenancy was Rs. 30 per month.

(3.) THE question, therefore, that came to be considered by the courts below was whether the Defendants were in default of the payment of rent or whether they had paid the rent in time as prescribed. On this question, the trial court on a careful examination of the materials placed before it came to the conclusion that the rent allowable under the Act was not regularly deposited as seen from the records of the four miscellaneous cases referred to in the judgment. It was found that the rent for November and December 1960 was deposited only on 4 -1 -61, the rent for January, February and March, 1961 was deposited on 21 -4 -61 and the rent for April and May, 1961 was deposited on 5 -6 -61. In view of the timings at which the deposits were made, the trial" court held that the tenants were not entitled to the benefit of Section 6(4) of the Act. This finding has been confirmed by the lower appellate court which found that the Defendants were defaulters as they had not paid the rent to the full extent and within the time allowed. This is, what is observed by the lower appellate court: