- (1.) THIS is a defendant's appeal and it arises out of a suit brought by the plaintiff-respondents for eject ment as well as for recovery of rent and damages. The allegations of the plain tiff-respondents were that defendant-ap pellant was tenant of the house in suit paying a monthly rent of Rs. 25.00. Per mission under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act had been obtained on 1'Oth Sep tember. 1962 by the original landlord who was plaintiff in the suit The landlord needed the house for his personal resi dence and on that account he had obtained permission. The defendant was given a notice of ejectment on 1st of Octo ber, 1962, but he did not vacate. There after again a notice on 5th February. 1964' for ejectment was given which was served upon the defendant on 6th February. 1964- The defendant, however, did not vacate the premises. On these allegations the suit for ejectment as well as for arrears of rent to the tune of Rs. 72.50 n.p. to gether with damages for use and occu pation at Rs. 400.00 was filed. The plain tiff died during the pendency of the suit His heirs were duly brought on record who are now respondents in this case. The suit was contested on the grounds which gave rise to the following issues:- 1. Whether the permission granted under Section 3 of U. P. Act in of 1947 a invalid as alleged in W. S. 2 2. Whether the notice dated 5-2-1964 Is invalid ? 3. Whether the above mentioned notice stands waived? 4. Whether the defendants paid Rs. 38.00 towards taxes? If so, is he en titled to it adjusted ? 5. Whether the plaintiff refused to accept the rent If so, its effect? 6. To what relief, if any is the plain tiff entitled ? The findings of the learned Munsif were that permission granted under Section 3 of U. P. Act III of 1947 was valid. He, however, held that notice dated 5th February, 1964 stood waived and as such of the defendant could not be said to have been terminated. On issue No. 4 the finding was that defendant had deposited only Rs. 38.00 as Nagar Maha-palika Tax and adjusting this amount the plaintiff was held to be entitled to re cover Rs. 434.50 p. as arrears of rent. The suit for electment was dismissed. An appeal was preferred by the plaintiff-respondents. The learned Civil and Ses sions Judge allowed the appeal and de creed the suit for ejectment as well. Feel ing aggrieved the defendant in come up in appeal to this Court.
(2.) THREE points were urged before me. The first point was that actually notice for ejectment relied upon in the plaint was of 1962 and, therefore, the Civil Judge was not right in holding that notice of 1964 was a valid notice of eject ment. The other contention was that notice for ejectment.of 1964 also was in valid as nowhere intention to terminate the tenancy appeared. The third point was that permission under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act did n9t hold good inas much as once the original landlord died and the need was personal his heirs could not take advantage of the same. I have heard learned counsel for the appellant Sri S- Rahman and the learned counsel for the respondents Sri Akhilesh Sahal. So far as the first point Us concerned I find that no doubt in para graph 4 of the plaint it was mentioned that tenancy was terminated by means of giving a notice. It was mentioned that tenancy was terminated by giving a notice of 1st of October, 1962 and that in para. 8 of the plaint it was mentioned that cause of action arose on 10th of January. 1963, but I find that it was also mentioned in paragraph 5 of the plaint that the plain tiff again served a notice of termination On 5th Feb.. 1964 which was served on 6th February. 1964 on the defendant and In spite of that notice of termination which gave 30 days clear notice the de fendant had not vacated the house. What Is more I find that on the date of Issues, namely. 8th February. 1966 not only a dear statement was given by the learned counsel appearing for the plaintiff that he was basing the suit on the notice dated 5th February, 1964, but issue No. 2 was also framed to that effect No objection was taken by the defendant to the fram ing of issue No. 2 nor did he press that this Issue should be struck off. It is, therefore, JQD late a stage to argue that suit was based on the notice of 1962. It may be that in paragraph 8 of the plaint cause of action was said to have arisen with effect from 10th January, 1963 but then giving a wrong date would not take away the cause of action. The cause of action arose on the basis of bundle of facts and once we find that notice of 1964' was specifically pleaded In paragraph 5. it cannot be argued that the plaintiff was not treating this notice of 1964 as valid notice of ejectment. This point, there fore, in my view has no substance.
(3.) COMING to the second point was find that Exhibit 5 is the notice dated 5tti February. 1964. In this notice it is clearly mentioned that "Mera Muvakkil aapko kirayadar naheen rakhna chahta hal Kiunke usko apne rahayas ke hetu makan ki avashyakta haL Lihaza notice miadf 30 yom aapko di iati hai ki tareekh tamH hone notice se andar 30 yomtak app makan ka takhlia kar den aur makan par kabza mere Muvakkil ko de den. Maiid bari 14-8-1962 se aapne, mere muvakkil ko eK habba bhi naheen ada kiva chunacha kul rakam pakaya kiraya ta takhlia makan mere Muvakkil ko ada kar dijiyae varna bad gujarne mivad notice aapke khilal babat takhlia makan. va 'iar bakavs kiraya dava adalat majaz men dakhil karega aur aap mere Muvakkil Ke jumla harza va Kharcha ke iimmedar hoonge.a In my. view this phrase clearly shows intention to terminate the tenancy. In Mangi Lal y. Sugan Chand. AIR 1965 SC 101 their Lordships of the Supreme Court were also concerned with interpretation of a notice of termination. There as we a similar ground was taken, namely, that the notice did not purport to determine the tenancy. Their Lordships observed at page 104 "it has to be observed that the plaintiffs after requiring the defendant to pay the rental arrears due UP to the end of March, 1959 within one month from the date of service of the notice, proceed ed to say falling which suit for ejectment will be filed (I have underlined these portions as these were stressed by their Lordships of the Supreme Court. These recitals clearly indicate the intention of the landlord to terminate the tenancy i the defendant." The notice Exhibit 5 question, In my view, clearly terminates fine tenancy of the defendant and it can not be said to be invalid. This point also, therefore, has no substance.;