Balram Upadhya, J. - (1.) This is a plaintiff's appeal. On 13-4-1944 the plaintiffs purchased the property containing the shop in which the defendant is a tenant. They sent a notice terminating the defendant's tenancy and filed a suit for ejectment. The suit was decreed but on appeal the case was remanded to the trial court. The defendant came up in revision to this Court but the revision was dismissed. By the time the case went back to the trial court the UP Control of Rent and Eviction Act had come into force and the suit for eviction was therefore dismissed.
(2.) The plaintiff then sent a notice under section 106 of the Transfer of Property Act and demanding arrears of rent. Rent for some period had become legally irrecoverable and the defendant sent what he considered to be three year's rent for the period 1-1-1949 to 31-12-1951 after deducting Rs. 90 which the defendant claimed to be due in respect of the decree for costs in the earlier litigation and Rs. 144 being municipal taxes paid by him on 25-2-1950 and 21-2-1951 (Rs. 72 each time) in respect of the property in question. A total sum of Rs. 1386 was remitted by the defendant to the plaintiffs by money orders. These were accepted under protest. The money orders had been sent in January 1952. Thereafter a notice dated 12-9-1952 was again sent by the plaintiffs telling the defendant that he had not paid the entire amount due from him as rent and asking him to vacate the premises and to pay the arrears due. This notice required the defendant to vacate the premises so as to deliver possession on 1-10-1952. As in the notice sent by the plaintiffs certain spaces had been left blank a copy of this notice was sent on 24-10-1952 requiring the defendant to pay the arrears due and filling in the blank spaces. The defendant did not pay anything more and the suit was thereafter instituted on 5-12-1952. The pleas taken in defence which are now relevant were that the defendant was not in wilful default and inasmuch as all the rent which was legally recoverable from him had been paid, the defendant was not liable to be ejected. It was pleaded that the defendant was entitled to adjust Rs. 90 the amount of the decree for costs and Rs. 144 the tax paid for the plaintiff's property to the Municipal Board. The trial Court found that the defendant was right in adjusting against the rent claimed from him Rs. 144 which he had paid to the municipality as tax, but was not justified in adjusting Rs. 90 against the arrears of rent. The learned Munsif further held that rent for the period earlier than three years had become time barred and was not recoverable. The learned Munsif further held that inasmuch as Rs. 90 had been wrongly adjusted by the defendant and ought to have been paid, the defendant was in wilful default in respect of the arrears and on this finding decreed the suit for eviction. Both the parties went up in appeal to the lower appellate court. The plaintiffs' appeal was against the adjustment of Rs. 144 which had been approved of by the learned Munsif and against the finding by the learned Munsif that the amount claimed in respect of the period earlier than three years was barred by time. This appeal was dismissed by the lower appellate Court. The defendant's appeal related to the question of ejectment and the question as to whether Rs. 90 which had been adjusted as the decree for costs should have been disallowed. The lower appellate court allowed the appeal in full on the finding that the defendant was entitled to adjust, the decretal amount as contended by him and could not be said to be in wilful default in respect of any arrears of rent on the facts of the case. In this appeal learned counsel for the plaintiffs appellants has not addressed any argument on the question as to whether the plaintiffs are entitled to the amount which the plaintiffs claimed in respect of the period prior to 1-1-1949. Mr. Singh explained that the plaintiffs stand was that the period of limitation could begin to run only after the rent had become due and in view of the fact that the tenancy of the defendant had been terminated by a notice under section 106 of the Transfer of Property Act and litigation was pending for a very long time, the amount which was claimed from the defendant for the entire period at least from the date of termination of the tenancy was not rent but essentially a claim for damages and user and it was only due to the coming into force of the UP Control of Rent and Eviction Act that the nature of the plaintiffs' claim could be affected and the amount to which he would be entitled due to the change brought about by the Statute could be said to be in the nature of rent. This argument, however, has not been pressed and it is not necessary in this appeal to disturb the finding recorded by the lower appellate court relating to this matter. The only questions which had been pressed for consideration in this appeals are (1) As to whether the defendant was entitled to deduct out of the rent claimed from him Rs. 90/- which was due to him in respect of the (decree for costs; (2) Whether the defendant was entitled to adjust, against the arrears demanded Rs. 144/- which he had paid to the Municipality for taxes; and (3) Whether the defendant was in will full default and therefore liable to be ejected.
(3.) The litigation in which the decree for Rs. 90/- is said to have been passed ended some time in June, 1951. The two amounts of Rs. 72/- each were paid to the municipal board on 25-2-1950 and 21-2-1951. It is not denied that the rent prior to the period 1-1-1949 had not been paid by the defendant. It is evident from the history of the litigation between the parties that soon after the purchase of the property by him in April, 1944, the plaintiff embarked upon an endeavour to evict the defendant and the usual payments by a tenant to his landlord of rent do not appear to have been made in this case. The plaintiff did claim a large amount in respect of the rent of that period which fell prior to 1-1-1949 but the claim has been disallowed on the ground of limitation. It is evident therefore that on the dates when the decree was passed and when these payments to the Municipal Board were made, the defendant did owe to the plaintiffs a large sum of money all of which had not become irrecoverable under the Indian Limitation Act. On 25-2-1950 when Rs. 72/- were paid the rent for the period beginning from March 47 was due and could be recovered by the plaintiffs. If therefore the defendant did make any payment for and on behalf of the plaintiffs to the Municipality, the payment should be treated as one made to the plaintiffs themselves. This payment would be not of rent for the last two months of the period for which it was due on 25-2-1951 and it could be properly treated as payment towards the rent of the earlier period which was then recoverable, namely, the rent for the months of March and April, 1947, The rent of the premises is said to be Rs. 45/- a month at the time. The amount of rent for those two months would therefore be Rs. 90/- out of which Rs. 72/- could have been properly paid. Similarly on 21-2-1951 when Rs. 72/- were paid to the Municipal Board by the defendant they may be treated as having been paid out of the rent due and recoverable for the months of March and April, 1948. In the same manner if on 25-6-1951 the defendant became entitled to Rs. 90/- as his decree for costs against the plaintiffs, he had the rents of the months of May and June 1948 against which he could recover this entire amount. I am unable to see how this amount could be claimed to be a set off or adjusted only against the rent for the period 1-1-1949 to 31-12-1951. Two contentions have been urged on behalf of the respondent in this connection. The defendant was entitled to adjust the tax against the rent of the years for which the taxes were paid. Learned counsel contended that the question was not raised in this form at the trial otherwise it could be possible for the defendant to show that in respect of the years 1944 to 1948 taxes were similarly paid. Even if this contention that taxes were paid similarly in earlier years be accepted, the payments of the taxes in those years could not wipe out entirely the liability for the rent of those years which was on the defendant. After all the taxes for each year are said to be Rs. 72/- only, while for each year the rent was Rs. 540/-. The argument that the payments of taxes are adjustable against the rent for these particular years in respect of which the taxes were paid can hardly be entertained. It is not pleaded that there was any such agreement and it an occupier has to pay any municipal dues which the owner is primarily liable to pay he can claim an adjustment against what he is himself liable to pay to the owner. Payments were made for the plaintiffs and could be claimed to be set off against the total amount which at the time the defendant was liable to pay to the plaintiffs. Regarding the adjustment of Rs. 90 for costs it is not clear on what date this adjustment was made. No copy of any such adjustment made in court has been produced. In June 1951 when the decree was passed in the defendant's favour he evidently became entitled to realise the amount from the plaintiffs and if he had in his hands money which was payable to the plaintiffs at the time the adjustment could best be made against that amount. I am, therefore, of opinion that there was no justification for the view that the defendant was entitled to deduct Rs. 90 or Rs. 144 from the amount which he was liable to pay to the plaintiffs as rent for the period 1-1-1949 to 31-12-1951.;