PANNALAL MODI Vs. HANSA SINGH

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for eviction of the defendant from two shop rooms, bearing Nos, 7 and 10, in a building situated in holding No. 1094-B of Ward No. 2 of the Ranchi Municipal area. The defendant respondent was admittedly inducted as a tenant of these shop rooms on a.monthly rent of Rs. 63.00 including water tax. The case of the plaintiff was that the defendant had defaulted in payment of the rent since Sept., 1960. It was further alleged that a notice terminating the tenancy had been issued on the defendant respondent on the 13th, of July, 1964 and it had been duly served on him. The suit, it may be noted, was instituted on the 21st, of Aug. 1965, that is long after the alleged service of the notice, which is alleged to have taken place in July, 1964 and according to the allegation of the plaintiff the rent was in arrears up to the time of the institution of the suit ever since Sept. 1960.

(2.) It appears that prior to the institution of the present suit the plaintiff had instituted another suit namely, Title suit No. 719 of 1960 on 5th of Dec., 1960 for eviction of the defendant on the ground of having defaulted in payment of rent since Sept. 1960. That suit was dismissed by the trial court but was decreed on an appeal preferred by the plaintiff. The defendant then preferred a second appeal which was numbered as Second Appeal No. 386 of 1963 and it is admitted that this Second Appeal was allowed with the result that the plaintiff's claim for eviction as made in the previous suit ended in dismissal. Neither party, however, produced the Judgment in the aforesaid second appeal to show that on what ground the appeal was dismissed but it was submitted before me on behalf of the appellant that that appeal had been dismissed on the technical ground of failure to serve a notice of termination of the tenancy in accordance with the provisions of Sec. 106 of the Transfer of Property Act.

(3.) The defence of the respondent in the present suit was that the defendant was never a defaulter in payment of the rent and according to him the rent had always been tendered to the plaintiff when the same became due and in view of the refusal of the plaintiff to accept the same the defendant used to remit the rent by money order. It was alleged that rent up to April, 1964, had been remitted by the defendant by money order and subsequently under order of this Court in S.A. 386 of 1963 the rent for the period Nov., 1960 to April, 1964, amounting to Rs. 2,646/- was deposited by the defendant in Execution Case No. 129 of 1963 which was filed by the plaintiff to execute the decree previously obtained by him in the appeal arising out of Title suit No. 719 of 1950 and subsequently the rent from May, 1964 onwards up to date of filing, of the written statement, which was filed on 1-3-1965, had been deposited in the afore- said execution case month by month. On these allegations it was contended that there has been no default in payment of the rent. The defendant further denied the service of the notice alleged to have been sent to him by the plaintiff and challenged the maintainability of the suit on that ground also.