- (1.) ON a difference of opinion between R. L. Gulati and H. N. Seth, JJ. the following question has been referred to me for opinion by the Acting Chief Justice:- "Whether on the facts and in the circumstances of the case the defendant-respondent could be said to have com mitted a default in payment of arrears of the decretal amount amounting to Rs. 89.75 for purposes of Section 3 of She Rent Control and Eviction Act?"
(2.) THE material facts to bring about the question referred to me are as follows: Munna Lal. defendant-res pondent, was a tenant of a portion of premises No. 105/336. Chamangani, Kanpur, at a monthly rent of Rs. 5/-. This house is owned by Bhikiha Lal and others, plaintiff-appellants. It appears that the tenant fell in arrears. The landlords, therefore, filed a suit, which was, later on. numbered as Suit No. 570 of 1961, for ejectment and for re covery of the arrears of rent and damages for use and occupation, amounting to Rs. 89.75 P. The suit was decreed by the Munsif. The tenant went up in appeal before the District Judge. He also applied for the stay of the execution of the decree pending the disposal of the appeal. The District Judge granted an interim order staying the delivery of possession provided the itenant deposited in the trial Court the entire decretal amount with costs and pendente little and mesne profits at the rate of Rs. 5/- per mensem from 9th March. 1971, within a specified period and continued to deposit the same at the rate of Rs. 5/- every month. In case of default, the stay order was to stand vacated. Pursuant to the interim order, the tenant deposited a sum of Rs. 240/-; mot in the trial Court, but in the ap pellate Court. At long last the appeal was partly allowed and the decree for ejectment was set aside. The suit for recovery of arrears of rent amounting to Rs. 89.75 P. however, stood decreed.
(3.) IT appears that the tenant again fell in arrears. The landlordsi therefore, sent a fresh notice dated 17th July, 1963. through a Vakil demanding the past arrears of Rs. 89.75 (represent ing the decretal amount) and subsequent arrears for seven months from 25th November, 1962 to June. 1963 to the tune of Rs. 35/- (total arrears of rent amounting to Rs. 124.75 P.). The notice was duly served on the tenant. The tenant sent a reply dated 6th August, 1963. through a Vakil, informing the landlords that the amount of Rs. 80.75 P. had already been deposited towards the decretal amount in Court and he had sent the other amount of Rs. 35/- by Money Order, It was definitely stated in the reply that if there was any diffi culty in getting the amount from the Court, he was prepared to give his con sent for withdrawal. The landlords did not respond to this letter and filed a suit for the eviction of the tenant treating him to be a defaulter within the mean ing of Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Evic tion Act (hereinafter referred to as the Act). The suit was contested by the tenant on the ground, inter alia, that he had already deposited the sum of Rupees 89.75 P. and sent the other amount of Rs. 35/- by Money Order well within thirty days of the. receipt of the notice, but the landlords refused to accept the same and. therefore, he was not a de faulter within the meaning of Section 3 '(1) (a) of the Act.;