Malik, C.J. - (1.) THIS is a Special Appeal filed against the judgment of a learned single Judge dismissing a second appeal under Order 41, Rule 11 of the Code of Civil Procedure Code. The Defendant was the tenant of a premises of which the Plaintiff was the landlord. The Defendant had not paid the rent since the 1st of May, 1951, and on the 4th of September, 1951, the Plaintiff served a notice on the Defendant asking her to pay the rent due up to the end of August, 1951, within 15 days. The notice also required the Defendant to vacate the house by the 30th of September, 1951. The tenancy was a month -to -month tenancy ending with the end of the month. The Defendant paid no heed to the notice and did not make any payment. On the 6th of November, 1951, the Plaintiff filed the suit for arrears of rent and ejectment out of which this appeal has arisen.
(2.) SECTION 3(a) of the U.P. (Temporary) Control of Rent and Eviction Act (III of 1947) requires that if a landlord has not obtained the permission of the District Magistrate to file a suit for ejectment, he can only file such suit if any of the grounds mentioned in Section 3 exists. The first ground mentioned in that section is as follow: - (a) that the tenant has wilfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a notice of demand from the landlord. The fact that notice was served on the 4th of September, 1951, and no payment was made when the suit was filed on the 6th of November, 1951, being admitted, the requirements of Section 3 were fulfilled. The fact that the Plaintiff had asked the Defendant to pay the amount within 15 days did not matter. The suit was not filed till after the expiry of one month. All that this clause requires is that the tenant should have wilfully failed to make payment within one month of the service of the notice. On the admitted facts that the Defendant had not made any payment within one month of the service of the notice of demand on her the Plaintiff had a right to file the suit and the fact that the notice gave 15 day's time did not vitiate the notice.
(3.) IT is urged further that the Defendant had thus a period of one month's grace within which to pay and during that period the Plaintiff had no right to serve on her a notice under Section 106 of the Transfer of Property Act (IV of 1882). S. 106 of the Transfer of Property Act provided that a lease of immovable property for any other purpose (that is not for agricultural or manufacturing purposes) shall be deemed to be a lease from month to month terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of tenancy. There is no reason, nor has learned Counsel been able to suggest any, why a notice under Section 106 of the Transfer of Property Act and a notice under Section 3 of the Control of Rent and Eviction Act cannot be given sumultaneously. If the Defendant had made the payment, the Plaintiff would have had no right to file a suit by reason of the provisions of Section 3 of the Control of Rent and Eviction Act.;