BHAGWATI PRASAD Vs. TULSIRAM

JUDGEMENT

(1.) THIS is a second appeal by the defendant in a suit for recovery of refit and ejectment. The respondent Tulsiram instituted the present suit in the court of Munsif Bikaner on 11th August 1952 on. the allegation that the defendant Bhagwati-prasad was originally a tenant in respect of certain premises on Rs. 7/- per month which rent had been increased by consent of parties in November, 1949 to Rs. 10/- per month. It was alleged that the defendant paid the rent up to end of April, 1950, but did not pay any rent thereafter. He claimed the arrears of rent from May, 1950 to July 1952 (27 months) namely Rs. 270/- and prayed for ejectment. It was alleged that the plaintiff also gave notice to the defendant on 2nd May 1952, but no reply was received.

(2.) THE defendant pleaded that he had paid the rent up to 1st December, 1951 and thereafter sent the rent for two subsequent months by money-order, but the plaintiff refused to receive payment. It was alleged that the rent was only Rs. 7/- per month which the defendant was prepared to pay from 1st December, 1951. He also deposited Rs. 400/- on 7th September 1953 in court towards the plaintiff's claim. THE trial court after evidence came to the conclusion that the plaintiff had failed to prove the increase in rent from Rs. 7/- to Rs. 10/- and that the rent was due only from 1st December, 1951. It held that the rent due from 1. 12. 1951 till the date of the judgment i. e. 30th April 1954 amounted only to Rs. 203/-, while the defendant had deposited Rs. 400/- out of which Rs. 300/- had been paid to the plaintiff and the plaintiff was liable to make a refund of Rs. 97/ -. It accordingly dismissed the suit. On appeal, the learned District Judge of Bikaner while agreeing with the finding of the trial court that the plaintiff had failed to prove the increase in rent did not rely on the evidence of the defendant that payment of the rent had been made till 1st December, 1951. He accordingly held that the defendant had become defaulter in the payment of rent from 1st May, 1950 and not only liable to pay the arrears, but had also become liable to ejectment. He held that the deposit of Rs. 400/- did not protect the defendant from ejectment as the deposit was not made on the first hearing and further the protection was not available because under the amended law, the defendant had become a defaulter on more than three occasions for a period of more than two months at a time within a period of 18 months. THE defendant has come in second appeal.