MATHURADAS MAGANLAL Vs. NATHUBHAI VITHALDAS

JUDGEMENT

(1.) The plaintiff in this suit seeks to evict the defendant who is a monthly tenant of the plaintiff's house at Sandhurst Road and, on July 18, 1921, gave notice to quit terminating the tenancy on September 1, 1921. The defendant pleads the Bombay Rent (War Restrictions) Act No. II of 1918 and the plaintiff's reply is that the defendant is not entitled to protection under the Rent Act as he has not paid the rent. The defendant admits that his rent is in arrears from July 1, 1919, but he states that he tendered arrears of rent to the plaintiff in August 1921 and that the plaintiff refused to accept the rent.

(2.) On these pleadings the following issues were framed: (1) Whether the defendant did not in August 1921 offer to pay all arrears of rent? (2) Whether plaintiff declined to recover arrears as he said he had terminated the tenancy by his letter of July 1921? (3) Whether in any event the plaintiff under Section 9 of the Rent Act is entitled to an order for possession?

(3.) Now the plaintiff had in Suit No. 941 of 1920 sued the defendant for possession and the suit had been dismissed on the ground that the plaintiff's requirements had not been proved, and that dismissal was without prejudice to the plaintiff's claim to recover the arrears of rent from the defendant. Since the dismissal of that suit the plaintiff's attorneys have been repeatedly demanding payment of rent. The first letter was Exh. A of June 23, and it was followed up by a second letter of August 9, 1920. To neither of these letters did the defendant make any reply until April 1921 when the defendant wrote demanding payment of the taxed costs in Suit No. 941 of 1920. The plaintiff in reply, on April 19, 1921, claimed to set off the amount of taxed costs against the amount of rent which was payable by the defendant, but the defendant objected to this and the plaintiff's demands of payment of the arrears of rent continued on May 5, 1921, Ex. D, and June 24, 1921, Ex. E, without eliciting any reply from the defendant. Eventually, on July 18, 1921, the plaintiff gave notice to quit.