- (1.) This second appear arises out of a suit filed by the landlady seeking the eviction of the tenant on the ground of default in the payment of arrears of rent for more than three months within one month of the service of a notice of demand on the tenant. The plaintiff's case in brief was as follows. She was the landlady of the house No. 79 Mohalla Bhatwara, Meerut City in the lower portion of which the defendant was a tenant on a monthly rent of Rs. 35/-. The rent for the month of November 1963 was remitted by money order after the tenant deducted sixty paisa being the money order fee from the sum of Rs. 35/- which was remitted to the plaintiff landlady as the rent for the said month of November and the landlady field there was no justification on the part of the tenant for deducting sixty paisa in respect of November 1963. A sum of Rs. 210/- was due for the period form 1st December, 1963 to May 1964. Therefore, a notice dated 16th June, 1964 was served on the tenant demanding the aforesaid sum of Rs. 2060/- as arrears of rent due from the tenant. It was a composite notice under Section 3 of U.P. Act No. 3 of 1947 and Section 106 of the Transfer of Property Act determining the tenancy of the defendant. The entire amount was not remitted by the tenant who remitted only the sum of Rs. 45.98/- was only due from the tenant in respect of the said period and the rest amount was properly deducted by the tenant. The deduction was towards electric charges water charges etc. It was claimed that an order was passed under Section 7-D of U.P. Act No. 3 of 1947 of favour of the tenant by the Rent Control and Eviction Officer where under the tenant became entitled to deduct the cost incurred by him for getting water and electric connections restored which had been illegally disconnected by the landlady. The suit was said to be barred by Section 3 of U.P. Act III of 1947. The notice of demand and ejectment was said to be illegal and invalid. The trial Court decreed the suit for eviction as well as for arrears of rent and mesne profits. The tenant filed an appeal in the lower appellate Court and lower appellate Court affirmed the decree of the trial Court and dismissed the appeal of the tenant. The tenant, has felt aggrieved and has come up in the instant second appeal.
(2.) Two questions arise in the appeal : (1) Was the tenant in arrears of rent for more than three months when the notice dated 16th June, 1964 was served on him (2) What was the correct amount due from the tenant when the said notice was given to him by the landlady
(3.) So far as the first question is concerned it is admitted that a sum of Rs. 210.60/- would be found due to the landlady up to 31st of May, 1964 in case no deductions were granted to the tenant . Even if the landlady's contention were accepted that the security amounts deposited by the tenant for getting back water connection and electric connection were not items of cost which could be deducted under Section 7-D of the U.P. Act No. 3 of 1947, Still, it will be seen that more than three months rent was not in arrears and due from the tenant. The lower appellate Court held that Court of the sum of Rs. 164.12 paisa claimed to be deductible under Section 7-D only Rs. 86.62 was deductible and the rest amount of Rs. 77.50 was not deductible as the same represented the sums of security which were paid by the tenant or obtaining water and electric connection. Even if the said finding be accepted (I shall examine the position hereafter under the second ground), still the amount due from the tenant on the date of the notice would be as follows : Rs. 210.60 (minus) Rs. 86.62 -Rs. 123.98 Admittedly, this amount is less than four months' rent which is the minimum rent which should have been due under Sections 3(1)(a) of he U.P. Act No. III of 1947. Therefore, in my opinion, when the notice was given under the said provision, the tenant was not in arrears of rent for more than three months and therefore, the said provision was not attracted to the facts of the case. The result is that the suit was not maintainable under Section 3(1)(a) and, therefore, the suit for eviction was barred under Section 3(1) of the U.P. Act of 1947.;