- (1.) THIS is a defendant tenant's appeal from a decree of the ap pellate Court evicting him from a house in suit and awarding arrears of rent and damages in favour of the plaintiffs land lords. The trial Court dismissed the plain tiffs' suit but the lower appellate Court by reversing the trial Court decreed the suit.
(2.) SRI Gopal Behari, learned coun sel appearing for the defendant appellant agitated a large number of questions of law in support of the appeal, but I think for the purpose of deciding this appeal I need not notice all the grounds urged in support of the appeal except the one on the question of the defendant tenant hav ing failed to pay the arrears of rent de manded by the plaintiffs-landlords by a notice under Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, as my answer to that question would be conclusive of the appeal. Admittedly the plaintiff land lords who are real brothers inherited the house in dispute from their ancestors, and so did the defendant tenant inherited the tenancy from his predecessors, father and uncle. It is further admitted that beside the defendant tenant his brother is also living in the house in suit. On 15-11-1966 a composite notice signed by a lawyer on behalf of the plaintiffs landlords addressed to the defendant tenant was sent demand ing the payment of arrears of rent within one month of the receipt thereof, termi nating the tenancy and calling upon the tenant to vacate the house on the expiry of one month from the receipt thereof. This notice was served on the tenant on 17-11- 1966. On 9-12-1966 a letter was sent by the tenant to the landlords informing them that the arrears of rent had been remitted by a money order on 7-12-1966 to one of the landlords on his Delhi address. In this letter the tenant admitted that he was the tenant of the landlords since the tirie of the grandfather of the landlords. This lottor was received by the landlords on 15-12-196G but they filed the suit giving rise to this appeal on the allegation that the tenant having defaulted in payment of the arrears of rent within one month of the service of notice and his tenancy hav ing been terminated, he was liable to be evicted and pay arrears of rent and dam ages. It was alleged in the plaint that no money order was ever received by the landlords in payment of the arrears de manded. The suit was contested by the tenant on the pleas, inter alia, that the suit not having been brought by all the landlords was not maintainable, that the suit having b -en brought for eviction of only one of the co-tenants was defective and liable to be dismissed; that a money order dated 7-12 196fi was sent to one the landlords at his Delhi address after the tender of the amount to the Karinda of the landlords at Agra on 6-12-1966 had been refused; that in any case on 16-12-1966 the whole amount of arrears was paid to Smt. Manorani, one of the co- owners of the house in suit and thus the notice of demand of arrears was complied with and the suit was barred by Section 3 of the U. P (Temporary) Control of Rent and Eviction Act.
(3.) AS already said above, I am not inclined to consider the arguments ad vanced on behalf of the appellant on the question of maintainability of the suit though there may be some tenability in those arguments since I have, on a consi deration of the material on record and after hearing the able arguments of the learned counsel for the bar, come to the conclusion that the findings of the lower appellate Court on the question of com pliance by the tenant with the notice of demand of arrears of rent are untenable and liable to be reversed. The first point which I considered was as to the correct ness of the finding of fact recorded by ihe court below on the factum of the arrears of rent having been tendered to Deodutt Gupta, the admitted Karinda of the land lords at Agra on 6-12-1966. Deodutt Gupta was produced as a witness by the plain tiffs landlords. He stated that neither the tenant nor anybody on his behalf came and tendered to him the arrears of rent on fi-12-1966. The defendant tenant himself appeared as a witness and stated that on 6-12-1966 he had gone to the house of Karinda at Agra and tendered the arrears of rent to Deodutt but he declined to ac cept the same for the reason that notices had already been served upon the tenant by the landlords and advised that the ten ant should deal with the landlords direct in the matter. Mr. G. N. Shiromani, an Advocate and colleague of the defendant tenant at the bar in Agra, also appeared as a witness and corroborated the statement of the defendant The learned Mun-sif believed this evidence adduced on be half of the defendant tenant and discarded the testimony of Deodutt. A finding was recorded by the learned Munsif that on 6-12- 1966 the defendant tenant tendered the arrears of rent to the Karinda of the landlords who refused to accept the same. The learned Judge of the lower appellate Court preferred to rely on the evidence of Deodutt, the Karinda, and rejected the testimony of the defendant and his witness Sri G. N. Shiromani. The finding was re versed and it was held that no tender of any arrears of rent was made by the de fendant tenant on 6-12-1966 to the Karinda of the landlords at Agra. This is a finding of fact binding in second appeal unless it were shown that it was vitiated by any error of law or procedure.;