- (1.) THIS is a plaintiff's appeal against an order of remand passed by the lower appellate court.
(2.) THE plaintiff is the landlord and the defendant is his tenant. On 1st February 1947, the premises were let out to the defendant on a monthly rental of Rs. 65/-, the tenancy being from month to month in accordance with the Gregorian Calendar. On 29th May 1948, the plaintiff gave to the defendant notice to quit by 30th June 1948, and on 26th July 1948, filed the suit for ejectment, arrears of rent for two months from 1st May 1948, to 30th June 1948; for Rs. 104/-mesne profits from 1st July 1948, on which date according to the plaintiff the tenancy terminated, to 26th July 1948, when the suit was filed; and for 'pendente lite' and future mesne profits.
(3.) THE defendant admitted that he was a month to month tenant on a monthly rental of Rs. 65/-, but pleaded that he had paid Rs. 65/-one month's rent in advance, that when he had occupied the premises on 1st February 1947, the premises had been only partially constructed and that he had advanced to the plaintiff Rs. 910/-, at the end of February, 1947, for completion of the house, and that he had never been given possession over five rooms so that the plaintiff was entitled to rent at the rate of Rs. 40/- per month only and not at the rate of Rs. 65/- per month. It was further pleaded that the U. P. (Temporary) Control of Rent and Eviction Act, 1947 (Act 3 of 1947)applied and the defendant was not liable to be ejected.;