Gopi Nath, J. - (1.) THIS is a plaintiffs' appeal and arises out of a suit for ejectment and arrears of rent. The dispute relates to a por tion of house No. 479, Madan Mohan Malviya Nagar, Allahabad. One Sri Brij Kishore Malviya, father of plaintiff No. 1 and husband of plaintiff No. 2 was the owner of the house. The defendant- respondent is tenant of a portion of that house at a rent of Rs. 15.00 per month. Sri Brij Kishore Malviya died leaving behind the plaintiffs as his heirs. At the time of death of Sri Malviya plaintiff No. 1 was a minor. During his minority plaintiff No. 2 looked after the affairs of the family. After attaining majority plaintiff No. 1 filed suit No. 746 of 1963 against the defendant-respondent for his ejectment and reco very of rent for the period December 1, 1962 to August 31, 1963. Eject ment was sought on the ground that the defendant had failed to pay the rent falling due during this period and was accordingly a defaul ter under Section 3 of the U.P. Control of Rent and Eviction Act (hereinafter referred to as the Act).
(2.) THE defence delieverd in that case, was that the rent had been paid to plaintiff No. 2 who had been looking after the affairs of the family and the defendant accordingly was not a defaulter. It was further pleaded that plaintiff No. 1 alone was not entitled to terminate the defendant's tenancy and maintain the suit. That suit was dis missed, inter alia, on the findings that the plaintiff alone was not com petent to terminate the defendant's tenancy and further that the de fendant was not a defaulter. On appeal the decree was affirmed on the finding that the suit was not maintainable by plaintiff No. 1 alone but no rinding was re corded by the lower appellate court on the question of default. It appears that after the decision of that suit the defendant again stopped paying rent and fell into arrears. The plaintiffs sent a com bined notice dated March 5, 1965 to the defendant-respondent under Section 3 of the Act and under Section 106 of the Transfer of Property Act terminating the defendants' tenancy and demanding rent for the period December 1, 1962 to February 28, 1965 which amounted to Rs. 405.00 and a sum of Rs. 17.16 as Bhumi Bhawan Kar for the period 1962 to 1965 within thirty days of the receipt of the notice, failing which the defendant was required to vacate the premises. The defendant replied the notice and stated that the rent from December 1, 1962 to August 31, 1963 had already been paid to plaintiff No. 2 and that a suit in respect of the rent for that period had already failed. He tendered a sum of Rs. 270.00 by money order to the plain tiffs which according to him was the rent due from September 1, 1963 to February 28, 1965. The remittance was made within thirty days from the date of the receipt of the notice. As regards the Bhumi Bhawan Kar it was stated that the defendant was prepared to pay the same provided it was payable to him. The payment of rent was not accepted by the plaintiffs. According to them defendant was liable to pay the rent for the period December 1, 1962 to August 31, 1963 as well and since the remittance of Rs. 270.00 covered the rent only for the subsequent period they were not obliged to accept the same.
(3.) THE suit giving rise to this appeal was filed on the allegations that the defendant was a defaulter within the meaning of Section 3 (1) (a) of the Act, having not paid the entire rent due from him. He was consequently liable to ejectment. A claim for his ejectment and recovery of Rs. 3429-26 paisa as arrears of rent and Bhumi Bhawan Kar and cost of notice was accordingly made. The plaintiffs also prayed for pendents lite and future mesne profits at the rate of Rs. 151-per month. The suit was contested on the pleas that the rent for the period February 1, 1962 to August 31, 1963 had already been paid, that a suit for recovery of rent for that period had already failed, that the in stant suit in respect of the arrear claimed for that period was barred by res judicata, that the decision in suit No. 746 of 1963 was binding on the plaintiffs that the plaintiffs having refused to accept the rent offered through the money order which was only amount due from the defendant could not treat the defendant as a defaulter, that the notice to quit was invalid and that the suit was not maintainable.;