SM SANT KUER Vs. GANESH CHOUDHARY

JUDGEMENT

(1.) This is a plaintiffs second appeal arising out of a suit in ejectment. The plaintiffs-appellants sought the eviction of the defendant-respondent from a house in mahalla Marufganj, P.S. Malsalami, Patna City, bearing holding No. 30, and lying in circle No. 207, ward No. 30. Arrears of rent were also claimed from Fagun Badi 1, sambat 1999 to chait Sudi 15,2000. Notice to quit was alleged to have been served on the defendant.

(2.) The defence substantially was that the notice served on the defendant was not valid that the Court had no jurisidiction to try such a suit in view of the House Control Order of 1942 and that after the service of notice, the defendant paid municipal taxes for the house under an arrangement with the plaintiff that the amount paid as tax would be set off against the rent. It was contended that because of this payment, the notice of ejectment must be deemed to have been waived.

(3.) The Court of first instance decreed the suit, but on appeal, its decision was reversed by the Subordinate Judge of Patna. The learned Subordinate Judge found that the notice served was a valid one and that the House Contol Order had no application to this case. But he was of the opinion that the notice determining the tenancy must be deemed to have been waived because at the instance of the plaintiffs the defendant paid municipal taxes which had to be set off against the rent. The suit was according-, ly dismissed by the learned Subordinate Judge.