V.K.Mehrotra - (1.) THIS is a revision under section 25 of the Provincial Small Cause Courts Act by the defendants in a suit instituted by plaintiff- opposite party Swarup Lal. The suit was decreed by the Trial Judge on November 20, 1982 both for eviction of the defendants from a shop as also for recovery of certain amount claimed as arrears of rent (for the period between April 1, 1980 and December 12, 1980) and water tax, damages etc.
(2.) THE suit, out of which the present revision arises, was preceded by Small Cause Courts Suit No. 87 of 1975 in which also a claim was made by Swaruplal for the eviction of the present applicants and for recovery of some amount as arrears of rent and damages. That suit was decreed on May 28, 1979. THE relief of ejectment was refused, inasmuch as, the present applicants, who were defendants in that suit also, had deposited the requisite amount and were extended relief under section 39 of U. P. Act No. 13 of 1972. THE plaintiff was permitted to withdraw the amount of rent. But, what he actually withdrew included the amount of interest and costs, (in addition to the amount of arrears of rent), and was a sum of Rs. 1966-50. THEre is no dispute between the parties that this amount withdrawn by Swarup Lal was in excess of the amount he was entitled to withdraw under the decree passed in that suit. In the present suit, by his first notice, Swaruplal claimed from the applicants arrears of rent for the period between October 1, 1978 and July 31, 1980. He gave a second notice to the defendants in which the claim made was for the period between October 1, 1978 and October 31, 1980. It is not in dispute that for the period between April 1, 1980 and October 31, 1980, the amount which was actually due from the present applicants to the plaintiff was a sum of Rs. 1120/-. It may be added that in Civil Revision No. 80 of 1979 (arising out of the earlier suit No 87 of 1975). the present applicants had deposited the amount of rent due from them till March 31, 1980. In the present suit, the Trial Judge has returned a finding that the defendants were liable to pay water tax to the plaintiff in addition to a monthly rent of Rs. 160/- that on the date of service of the notice the arrears due from the present applicants to the plaintiff was only for the period between April 1, 1980 and October 31, 1980 and that this amount was not tendered to the plaintiff within a month of the service of notice upon the defendants so that the defendants committed default in the payment of rent within the meaning of section 20 (2) (a) of U. P. Act No. 13 of 1972.
(3.) AFTER hearing Sri Vishnu Sahai for the defendant-applicants and Sri Sunil Ambwani for the plaintiff both of whom have ably placed the case of the party represented by them, I am of opinion that the defendant-applicants are entitled to relief from this Court. The only question upon which the decision of this revision turns is whether on the facts admitted to the parties and the findings recorded by the learned trial Judge, the defendants-applicants can be said to have committed default in payment of rent to the plaintiff so as to render them liable for ejectment from the shop. The submission of Sri Sahai is that a finding of default can only be recorded in case the Court comes to the conclusion that the tenant was in arrears of rent for ' not less than four months '. Since, in the present case, according to the submission the defendants could not be said to be in arrears of rent for that period, the conclusion of the Trial Judge that they had committed default was not a conclusion according to law.;