Ram Pratap Sunar vs Thakur Prasad

Chandra Prakash, J.—This is a second appeal against the judgment and decree dated 31-5-1966 passed by III Addl. Civil Judge, Allahabad allowing the Plaintiff Respondent''s appeal and decreeing the Plaintiff''s suit for ejectment and also for recovery of Rs. 3/- after modifying the decree of the trial court.

The suit giving rise to the second appeal was filed by the Plaintiff Respondent against the Defendant Appellant on the allegations that the Appellant was the tenant of the house detailed in the plaint on monthly rent of Rs. 5/-. The tenancy commenced on 28th day of each English month. The Appellant did not pay rent for 28 months from August 28, 1962 to December 27, 1964 and thereafter the Plaintiff Respondents served a combined notice of demand and termination of tenancy (sic) 1965. This notice was served on the Appellant on January 19, 1965. The Defendant Respondent did not pay the arrears of rent within one month of the service of notice hence the suit for ejectment of the Appellant and for recovery of Rs. 156.50 paisas from the Appellant as arrears of rent, pendenti lite and future damages were also claimed at Rs. 5/- per month.

The Appellant resisted the claim on the ground that he paid Rs. 33.89 paise as house and water tax on March 7, 1964 and Rs. 30.60 paise as house and water tax from February 3, 1965 and after deducting this amount of Rs. 64.49 from the arrears of rent he personally tendered Rs. 75.51 to the Respondent within one month of the service of notice. The Appellant refused to accept and the Respondent remited that amount by money order. The Appellant refused to accept that money order also. It was held that the Plaintiff was not entitled to eject the Defendant.

After taking evidence of the parties the trial court accepted the defence version that the Appellant paid Rs. 64.45 on account of house and water taxes on behalf of the Plaintiff Respondent in accordance with the agreement entered into between the Appellant and the Respondent. It also held that the Plaintiff did send Rs. 75.51 within a month of the service of the notice of demand but the Plaintiff Respondent refused to accept it. It held in the circumstances of the case that the Defendant Appellant did not commit any default. It therefore decreed the Plaintiff''s suit for the realisation of Rs. 85.51 and dismissed rest of the claim including the prayer for ejectment.

Against the above decree the Plaintiff-Respondent filed appeal in the lower appellate court and after hearing the parties the lower appellate court came to the conclusion that the Defendant did commit a default in payment of arrears of rent and as such he was liable to be ejected. The lower appellate court further held that the amount sent by the Defendant Appellant to the Plaintiff fell short by Rs. 3/-. It therefore enhanced the amount decreed by the trial court by Rs. 3/- and decreed the claim of the Plaintiff for ejectment also.

Feeling aggrieved the Defendant has now come up in second appeal before me. I have heard learned Counsel for the parties. I have also gone through the record. After giving the matter ray anxious consideration I have come to the conclusion that the order passed by the court below cannot be interfered with. It has been found by the court below as a fact that there was an agreement between the parties by which the Defendant Appellant agreed to pay house and water taxes on behalf of the Plaintiff from the arrears of rent from time to time and this finding of fact has not been challenged before me. The only contention raised before me was that Defendant Appellant bad paid Rs. 64.49 as house and water taxes to the Municipal Board or Municipal Corporation. This amount included Rs. 3/- on account of reconnection charges. The lower appellate court has taken the view that the contract between the parties was that the Defendant was to pay house and water taxes only on behalf of the Plaintiff Respondent from the arrears of rent. There was no contract for paying reconnection charges and if the Defendant paid any amount of Rs. 3/- on account of reconnection charges he was himself responsible for paying that amount and the Plaintiff Respondent cannot be debited with that amount. This view appears to be correct. As already noted above and pleaded in the written statement the agreement between the parties simply was that the Defendant will pay on behalf of the Plaintiff arrears of house and water taxes. This amount the Appellant was certainly entitled to deduct from arrears of rent. But the Defendant Appellant also paid Rs. 3/- as reconnection charges. Reconnection charges are paid when the connection is cut on account of some fault of the person in occupation of the house. There was no allegation in the pleadings that reconnection charges was paid due to any fault of the Plaintiff Respondent. As a matter of fact the Defendant was in possession of the premises and if any disconnection took place it must have been made for some fault either of commission or omission of the Defendant Appellant. In this view of the matter the Defendant Appellant committed an error by withholding an amount of Rs. 3/- which could not be debited against the Plaintiff Respondent.

My attention on behalf of the Appellant was drawn to the Full Bench ruling reported in Indarasani v. Din Ali 1968 AWR 167. In this Full Bench case it was decided that where a tenant remits rent by money order and the amount remitted covers rent for a particular month and the landlord refuses to accept the same the tenant cannot be said to be in arrears in respect of that month within the meaning of Section 3(1)(a) of the U.P. (Temp.) Control of Rent and Eviction Act. This ruling is distinguishable and does not apply to the facts of the present case. In that ruling the tenant sent the entire rent that was due in respect of the month. In the present case the Defendant did not send the entire amount of arrears of rent after deducting the house and water taxes. The Defendant sent the amount after deducting the reconnection charges Rs. 3/-which Could not be debited against the Plaintiff landlord. The court below was therefore right in holding that the Defendant committed a default because the amount sent by him fell short of the amount due from him by Rs. 3/-.

For the reasons given there is no force in this appeal. It is hereby dismissed with costs.