K.B. Asthana, J. - (1.) THIS is a Defendant's appeal. The suit which has given rise to this appeal was brought by the Plaintiff -Respondent for ejectment of the Defendant Appellant from a house and for recovery of a small amount as damages for use and occupation. The Plaintiff alleged that the Defendant was his tenant is the house in suit and an agreed rent at the rate of Rs. 80/ - per month was payable. It was further alleged that the Defendant did not pay the rent and fell in arrears. It was pleaded that a notice dated 25th January, 1958 demanding payment of the arrears of rent with effect from 6.12.1955 up to 5th January, 1958 at the rate of Rs. 80/ - per month was sent to the Defendant which was served upon him on the 28th of January, 1958, but the Defendant did not comply with the said notice and defaulted in payment of rent. It was then pleaded that by a notice dated the 29th March, 1958 the Plaintiff terminated the tenancy of the Defendant and called upon him to quit and vacate the premises on the expiry of thirty days after the receipt of notice and that this notice was served on the Defendant on 3rd March, 1958. According to the Plaintiff the Defendant did not vacate the premises, hence the suit for ejectment and recovery of arrears, damages and manse profits. The defence in the main was that the agreed rent settled was at the rate of Rs. 50/ - per month which the Defendant was always ready to pay but the Plaintiff demanded rent at the rate of an exaggerated figure which the Defendant was not bound to pay and there had been no default in the payment of rent, the suit of the Plaintiff being thus barred by Section 3 of the UP (Temporary) Control of Rent and Eviction Act. The validity of the notice to quit was also challenged and it was pleaded that it stood waived. It was alleged that the Defendant after receiving the notice of demand had replied to the Plaintiff that he was always prepared to pay rent at the rate of Rs. 50/ - per month and would pay the same but the Plaintiff did not respond to this request and ultimately in protest the Defendant deposited in April, 1958 all the rent due up to 5th April, 1958 having calculated it on the basis of Rs. 80/ - per month as demanded by the Plaintiff and the Defendant was entitled to the benefit of the provisions of Section 111 of the Transfer of Property Act.
(2.) ON the pleadings of the parties the learned Munsif of Moradabad framed the necessary issues. He found that the Defendant defaulted in payment of the arrears of rent within the meaning of Section 3(1) (a) of the UP (Temporary) Control of Rent and Eviction Act and the Plaintiff's suit was not barred. On the question whether the notice of demand was bad on account of the Plaintiff having claimed an ex aggregated amount of arrears it was held that the notice was not bad. On the main issue whether the notice to quit was waived the learned Munsif held that the Plaintiff having accepted the rent after the notice to quit was served it would stand waived and the Defendant was not liable to be ejected. Having held that the tenancy subsisted, yet the learned Munsif awarded a decree for Rs. 150/75 nP. as prayed for. Accordingly the Plaintiff's suit for ejectment of the Defendant was dismissed and was decreed for recovery of Rs. 150/75 nP. Against the decree of the learned Munsif the Plaintiff filed an appeal and the Defendant filed a cross objection. The appeal and the cross -objection were both heard together by the learned Temporary Civil and Sessions Judge of Moradabad. All the points which were agitated by the parties at the trial were reiterated in appeal. The learned Judge of the lower appellate court on a review of the evidence on record and on a consideration of the circumstances of the case while affirming the findings of the learned Munsif on the question whether the Defendant had defaulted in complying with the notice of demand and whether the notice of demand was a good notice, reversed the finding in regard to the waiver of the notice to quit and held that there was no waiver of that notice. Consequently, the appeal of the Plaintiff was allowed and the cross objection of the Defendant was dismissed. Thus, the result was that the Plaintiff's suit for ejectment of the Defendant from the house in suit and for recovery of Rs. 150/75 nP. as damages stood decreed. The Defendant has now come up in second appeal from this decree. Sri S.B.L. Gaur, learned Counsel appearing for the Defendant Appellant, assailed all the findings recorded by the court below. His first contention was that the Defendant could not be said to be in default of payment of rent and the suit of the Plaintiff was barred by the provisions of Section 3(1) (a) of the UP (Temporary) Control of Rent and Eviction Act. It was suggested by the learned Counsel that the notice of the Plaintiff dated 25th January, 1958, Ex. 6 on the record was bad inasmuch as an exaggerated rent was claimed, but in view of the decided cases of this Court the learned Counsel did not pursue this line of argument and I think rightly. It is now established law as far as this Court is concerned that a notice of demand of rent is not rendered invalid if an exaggerated amount is mentioned by the landlord as being in arrears or if no figure at all is mentioned in the notice intimating what the arrears were. The learned Counsel, however, strenuously contended that the Defendant cannot be said to have failed to comply with the notice as he by his letter dated 21.2.1958, Ex. A9 on the record, intimated to the Plaintiff that no agreed rent at the rate of Rs. 80/ per month was payable and what was payable was rent at the rate of Rs. 50/ - per month which he was always prepared to pay. My attention was also drawn to the fact that in his reply the Defendant had definitely intimated to the Plaintiff that he would await further instructions from him and on hearing from him would pay all the arrears at the rate of Rs. 50/ - per month. It was urged that the reply having been sent by the Defendant before the expiry of the period of one month from the service of notice of demand and the Plaintiff having kept silent the bona tides of the Defendants were established and he could not be said to be a defaulter. It is not possible for me to accept this submission of the learned Counsel. Alter the amendment of Section 3(1) (a) of UP (Temporary) Control of Rent and Eviction Act and the deletion of the "willful default" the circumstance that the tenant was under any bona fide belief as to the amount of arrears of rent and that the circumstances showed that the tenant was ready and willing to pay what was due from him to the landlord, but the landlord kept silent and did not respond and arrive at an understanding with the tenant for ulterior motives are of no avail. The requirement of the law as it stand now is that whatever the tenant thinks is rightly owed by him as arrears in the landlord provided he had been in arrears for a period of more than three months has to be tendered with in thirty days of the service of the notice of demand. Anything, short of it will not save him from being sued for ejectment and the bar which the provisions of Section 3 of that Act imposes for filing a suit for ejectment against him would no longer be available to protect him. A perusal of the reply Ex. A9 shows that instead of tendering whatever the Defendant thought was arrears at the rate of Rs. 50/ - per month he raised a controversy as to the rate of rent. I do not think that the reply which the Defendant gave to notice of demand can be equated to the tendering of the rent which was in arrears. It was then feebly argued that if all the accounts were taken and the money which had already been deposited or paid to the Plaintiff's credit by the Defendant it would be sufficient to cover the rent for the period mentioned in the notice of demand when calculated on the basis of Rs. 50/ -per month and the Defendant was not actually in arrears when the notice of 28th January, 1958 was served upon him. I do not think I would be justified in second appeal to allow the Defendant to raise such a plea which was never indicated in his written statement and on which the parties were not at issue in the courts below.
(3.) RELYING on a decision of this Court in the case of Mohammad Ismail v. Hafiz Nur Ilahi (1) (1961 AWR 301) the learned Counsel for the Appellant next contended that inasmuch as the Plaintiff failed to establish that Rs. 80/ - per month was the settled rent and the circumstances show that the actual rate of rent was not agreed upon between the parties and no rent having been fixed under Section 5(2) of the UP (Temporary) Control of Rent and Eviction Act the Defendant could not be adjudged to be a defaulter as he was not in a position to know what the ultimate settlement between the parties would be. This contention of the learned Counsel can be briefly disposed of on the footing that in his written statement the Defendant himself had set up a case that Rs. 50/ - per month was the agreed rent between the parties. The Defendant thus, when the notice was served upon him on 28th January, 1958, knew that the agreed rent was Rs. 50/ - per month and it was his duty, if he wanted to comply with that notice, to tender the rent at that rate. Even in his reply dated 21.2.1958, Ex. A9, which was a document earliest in the sequence of time the Defendant did not take up the stand that no rent was settled between the parties, but said that it was Rs. 50/ - which was the agreed rent. In these circumstances I do not think the Appellant can derive any benefit from the decision cited.;