J.K. Tandon, J. - (1.) THIS is a Defendant's appeal arising out of a suit for ejectment and arrears of rent in respect of a house which is in his occupation. The Appellant is admittedly in occupation of the house on behalf of the Plaintiff Respondent as a tenant. The suit was commenced in 1952 for recovery of arrears of rent and also for ejectment. It was decreed by the trial court on 20 -9 -1952 which gave a decree for arrears of rent but dismissed it for ejectment, on the ground that the ejectment notice was invalid. The Plaintiff appealed from this decree and the appellate court on 30 -3 -1953 upset the decision of the trial court and gave a decree for ejectment as well. Thereafter the Defendant appealed to this Court and on 18 -3 -1955 the case was remanded back to the Munsif with the direction whether a certain notice Ext. I sent by the Plaintiff to the Defendant was sufficient for the purposes of Cl. (a) of S. 3 of the UP Control of Rent and Eviction Act, 1947. Once again the Munsif, to whom the matter was sent back, held that the notice was given and he gave a decree for ejectment on 26 5 -1955. There was an appeal by the Defendant and I am told, the suit had once again to be remanded to the Munsif by an order dated 15 -12 -1955. Finally on 13 -8 1956 the Munsif yet again gave a decree for ejectment. There was an appeal to the District Judge which was dismissed on 15 -1 -1957. It is against this decree that the defendant has come up in second appeal to this Court.
(2.) THE arrears of rent or the rate of rent, is not in dispute before me. The only question that has been canvassed by the learned Advocate for the Appellant is whether the notice Ext. I to which reference has already been made earlier amounted to a notice of demand within the meaning of Cl. (a) of S 3 of the UP Control of Rent and Eviction Act, 1947. This clause reads as follows: ......no suit shall,........he filed in any Civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds: (a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand;" It is not disputed before me that at the time when the notice Ext. 1 was sent by the Respondent arrears of rent were due from the Appellant. Cl. (a) of S. 3 has since 1952 underwent an amendment. At the time when the notice Ext. 1 was issued it was not necessary that the arrears should be for more than three months. The validity of the notice Ext. 1 is therefore not challenged on that ground. Before proceeding further it might be useful to reproduce Ext. 1 here which is a very short document. It reads as follows: Dear Sir, I am sorry to inform you that you have not paid the rent of my house for the months of September 1 to Dec. 31, 1951, as yet, which amounts to Rs. 100 (one hundred) only at the rate of 25 p m. You have not handed over to me my luggage etc. also, Kindly send the same and the luggage to me at your earliest convenience." It would appear that some luggage over and above the arrears of rent in respect of the period September 1 to December 31, 1951, was also held by the Defendant Appellant. The Appellant accordingly asked him to send back that luggage to him and also send him the amount of arrears. It is contended that though the Defendant was reminded that a sum of Rs. 100 on account of arrears was payable by him, no demand such as would meet the requirements of Cl. (a) of S. 3, was made. Reliance for this proposition is laid on the words "at your earliest convenience" used in the last sentence of Ext. 1 by, which the Defendant was asked to pay the amount. The learned Counsel for the Appellant has contended, that the obvious meaning of Ext. 1 was that the Defendant had been given choice to pay the arrears whenever convenient to him, and that, in any case, there was no demand such as might have brought him within the clutches of Cl. (a). On behalf of the Respondent it is contended that there was nevertheless a demand by the landlord from the tenant of the amount due from him and the inclusion of the expression "at your earliest convenience" was nothing more than a gesture of courtesy towards him. I am afraid if the words "at your earliest convenience" did in fact give some choice to the Defendant in the matter of payment, as perhaps they do, it cannot be said that their only purpose was to show him some courtesy. These words can reasonably be" interpreted as giving to the Defendant the choice to make payment when his convenience enabled him. No doubt they do not give him a license to pay at his sweet will whenever he liked, but they certainly indicated some indulgence to him in the matter of payment. The question, however, which will arise is whether with the presence of these words in Ext. 1 it did still amount to a notice of demand as contemplated by Cl. (a) A notice of demand, as is very clear, is more than a mere request. It implies a categorical requisition to pay the arrears under pain of consequences flowing from non -payment. It will not be sufficient, as, however, was contended by the learned Counsel for the Appellant that the amount alone is categorically stated or a request is addressed. There must further be, as said earlier, a requisition categorically made that the amount which is due should be paid. If no such categorical requisition is made while the document may amount to a request for payment of some thing which is due and is payable but it does not, in my view, amount to a notice of demand which, as is very clear from the section, carried with it certain obligation and liabilities. In incorporating this provision, the Legislature clearly intended that the tenant should know that if he did not make the payment as demanded, he would be liable to be evicted. Any requisition which whether by any thing expressly said in it or by implication gave out a different intention, will, in my opinion, not amount to a notice of demand required by Cl. (a) of S. 3.
(3.) IN this view of the matter, Ext. 1 on which the Respondent has relied in this case failed to be a notice of demand as it left the choice to the Defendant to postpone payment until his convenience so enabled him. That being so, the present sun for ejectment was not maintainable in view of Cl. (a) of S. 3.;