Bal Kishan vs Mangi Devi

N. N. Mithal, J.

This second appeal has come up before this Court at the instance of the defendant who has lost his case in both the Courts below.

The facts giving rise to the suit are that the defendant was tenant of the plaintiff in the premises and fell in arrears from 1765. A demand notice was sent to him on 29th May 1967 which was admittedly served on 31st May, 1967. The defendant did not pay any rent within one month of the receipt of this notice and thus committed default in payment of rent. Subsequently another notice was sent on 1851968 purporting to be under Section 106 of the Transfer of Property Act.

This notice was served on the defendant admittedly on 2051968. The defendant paid the rent due from 171965 to 20th June 1967 on 2551968 at the rate of Rs.425 per month and for the subsequent period up to May 1968 at the rate of Rs.5,31 per month. The defendant, however, did not vacate the premises as directed in the notice issued under Section 106 of Transfer of Property Act. As a consequence of it the plaintiff filed a suit for the ejectment of the defendant appellant and for arrears of rent and mesne profits etc. The main contention of the defendant has been that he did not commit any default in the payment of rent as the plaintiff had waived the notice by acceptance of rent on 2551968. The validity of the notice dated 2951967 and 1851968 was not challenged on these grounds the suit was sought to be dismissed.

The trial Court agreeing with the case of the plaintiff decreed it in full. The defendant went up in appeal and the appellate Court framed one more issue regarding waiving of the notice and remitted the same to the lower Court for its findings on the plea of waiver. This issue was also decided in favour of the plaintiff who remitted his findings on the issue to the appellate Court on 2431972. In the appeal the defendant has again been unsuccessful on all the grounds and the same was dismissed, hence this appeal.

Before this Court only one argument has advanced. It is to the effect that after issue of the second notice the defendant paid the entire arrears of rent due up to 31st May, 1968 and therefore, by the conduct of the plaintiff it was clear that she had waived the notice and therefore the defendant appellant was not liable for ejectment.

I have heard learned counsel for the parties at length.

The U. P. (Temporary) Control of Rent and Eviction Act, 1947 placed a bar on the right of the landlord to evict the tenant and from filing a suit for ejectment without the permission of the D.M. unless any of the conditions laid out in the later portion of Section 3 of the said Act were complied with. One such condition was contained in subclause (a) and it required that the tenant should be in arrears of rent for more than three months and should have failed to make payment inspite of the demand. In order to get rid of this hurdle the plaintiff served a notice on 29th of May 1967. Up to 30th of June 1967, however, the defendant did not make payment of the arrears demanded from him and in this manner the first hurdle created by Section 3 (a) of the U. P. Act III of 1967 had been removed. At this stage the plaintiff was relegated to the general law and it became necessary for him to terminate tenancy of the defendant by serving a notice under Section 106 of the Transfer of Property Act before she could proceed to file a suit for the ejectment of the defendant. For this purpose the plaintiff served another notice on 18th May 1968 which was received by the defendant on 2051968. This notice had nothing to do with the default of the defendant. In fact the default had already been committed and the plaintiff was only trying to take further action to which he became entitled after the default in payment of rent had been committed by the defendant. The second notice was a notice of termination of tenancy simpliciter and the same was not dependent on the acceptance or otherwise of rent of the earlier period. This notice would be effective from the midnight of 19th of June 1968 and before that date the defendant was fully entitled to remain In possession of the premises subject to his liability to pay rent for the period he remained in occupation of the premises. If any amount representing the rent for the period 171965 to 31st May 1968 was paid by the defendant on 25th May 1968 it would hardly make any difference because the default committed earlier by the defendant had not been condoned. The acceptance of the rent would also not waive the second notice of terminating tenancy because no rent was accepted after the tenancy has come to an end or for a period subsequent to the said date. In the circumstances, what the plaintiff seems to have done is merely to split the action by serving two separate notices. By the first notice he acquired the right to proceed with the suit after removing the bar placed by Section 3 of U. P. Act III of 1947 and by the second notice he terminated the tenancy as is required under Section 106 of the Transfer of Property Act.

I do not, therefore, find any illegality or impropriety in the order passed by the two Courts below and it is clear case in which the defendant is in default of payment of the rent and is liable for ejectment etc. No other point on the validity of the notice or otherwise was pressed before this Court.

In the result, the appeal fails and is hereby dismissed with costs to the respondent.