- (1.)AS the two courts below have decreed the plaintiffs suit for the recovery of arrears of rent and eviction, the defendants have filed this appeal against the judgment and decree of the Distract Judge of Pali dated January 4, 1968.
(2.)IT is admitted that defendant Sangatmal was a tenant of plaintiff Smt. Kastoori bai in a shop which carried a monthly rent of Rs. 10. The plaintiff filed the present suit with the allegation that the said Sangatmal paid the rent only up to December 25, 1960 and he became a defaulter thereafter. When a notice of termination of the tenancy was given by the plaintiff, the defendant, it is alleged, made a payment of Rs. 50 on account of the arrears up to May 24, 1931, but did not vacate the shop. The present suit was therefore instituted for his eviction and recovery of damages on July 28, 1961. Thereafter the defendant made a further pay-merit of Rs. 20 on August 2, 1961. He admitted the tenancy but denied the defaults. He pleaded that the notice was waived by the plaintiff. Five issues were framed in the trial court dealing with these and the other defences. That court upheld the plaintiff's plea regarding the defaults made in the payment of the rent and rejected the defence of waiver. It therefore decreed the suit for eviction as well as recovery of damages for the continued use and occupation of the premises. An appeal was taken to the District Judge of Pali, and as it has been dismissed by the impugned judgment, the legal representatives of defendant Sangatmal, who were brought on the record in the trial court On his death, have preferred this second appeal.
(3.)BEFORE considering the arguments of the learned counsel for the appellants, it will be convenient to state the admitted facts regarding the payment of the rent. It is admitted that the tenancy commenced from March 25, 1957, It is also admitted that on December 29, 1960, defendant Sangatmal paid off the rent up to december 24, 1960. No rent was paid thereafter, and the plaintiff gave notice Ex. 2 to defendant Sangatmal on May 27, 1961, which reached him on. May 29, 1961, stating that as he had not paid the rent and had become a defaulter the plaintiff did not want to keep him as a tenant and that she had decided to terminate his tenancy on the expiry of the period of one month. On receipt of that notice, the defendant paid Rs. 50 on June 1, 1961 on account of the arrears of rent up to May 24, 1961. The plaintiff, however, instituted the present suit on July 29, 1981. The defendant thereafter made a payment of Rs. 20 on August 2, 1961 and in that manner he paid the rent up to July 24, 1961.
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