- (1.) THIS second appeal arises out of a suit which the plaintiff filed claiming to be the landlord of the suit accommodation and the defendant' s eviction was claimed from the said accommodation on the ground that the latter' s tenancy in the same had been determined by a notice under Section 106 of the Transfer of Property Act. The plaintiff alleged that the defendant tenant failed to pay the arrears of rent due from him for the period from 1st July, 1958 to December, 1958, within a month of the notice of demand which was served on him on 21st January, 1959 and, therefore, he became a defaulter and the suit for eviction was, therefore, maintainable without the permission of the District Magistrate under Section 3 of the repealed U. P. Act III of 1947. The abovementioned notice was a composite notice which combined demand with the determination of the defendant' s tenancy. The tenancy stood determined with effect from 28th February, 1959. Therefore, with effect from March 1, 1959, the defendant became liable to pay damages for his illegal use and occupation which were claimed at the rate of Rs. 45/- per month which was also the contractual rate of rent. Thus, the plaintiff claimed decree for eviction, for arrears of rent from 1-7-1958 upto 28th Feb., 1959 and for damages for illegal use and occupation for the period commencing from 1st March, 1959 onwards. Certain amount was claimed for electric current supplied by the plaintiff to the defendant.
(2.) THE defendant raised various pleas in defence. Inter alia, it was contended that the notice in question was bad in law; the suit for eviction was not maintainable as a part of the tenanted accommodation had not been included in the suit; the plaintiff exercised undue influence and pressure on the defendant in compelling the latter to agree to pay the rent at the exorbitant rate of Rs. 45/- taking advantage of the difficult situation in which the tenant was placed; the plaintiff discontinued supplying electric current to the defendant' s portion and thereby deprived the tenant of an amenity to which the latter was entitled; the defendant was deprived of the quiet enjoyment of the tenanted accommodation and the necessary repairs were not effected to the said accommodation. THE contract of tenancy was alleged to be void and illegal as it was not brought about by an allotment order of the District Magistrate. THE defendant lastly alleged that he was not a defaulter as a cheque for the arrears of rent was tendered to the plaintiffs counsel but the latter refused to accept the same and, therefore, it was sent by post within a period of one month. However, the postal envelope could not be tendered to the plaintiff due to the latter' s tactics and in such a situation, the defendant was not a defaulter and the plaintiffs suit for eviction was liable to be dismissed. The trial court framed the necessary issues and tried the suit. It may be stated that during the pendency of the suit, the defendant vacated the accommodation in question. In the trial court, there was some dispute between the parties as to the real date of such vacation. The defendant alleged that he had vacated the accommodation on 31-3-1961 whereas the plaintiff alleged that the same was vacated on 20-4-1961. The trial court believed the plaintiff' s version and held that the suit accommodation was vacated on 20-4-1961. In view of the said finding, the trial court observed that it was not necessary to pass any decree for ejectment. A decree for rent amounting to Rs. 360/- was passed for the period from 1st July, 1958 to 28th February, 1959. A decree for damages for illegal use and occupation was also passed for the period from 1st March 1959 upto 20th April, 1961 at the rate of Rs. 45/- per month amounting to Rs. 1155/-. A decree for Rs. 43/2/6 was passed in respect of the electricity charges due from the defendant to the plaintiff. The plaintiff was also held entitled to full costs of the suit. The defendant filed an appeal in the lower appellate court but the same was dismissed with costs. The said court, however, directed certain sentences to be deleted from the judgment of the trial court. The deleted sentences were critical of the conduct of the defendant. The defendant has now come up in the instant second appeal and he argued the case in person before me. He made the following points : - (1) The contract of tenancy between the parties was void and illegal under Section 23 of the Indian Contract Act. As such, it was not enforceable by a court of law. (2) The notice under Section 106 of the Transfer of Property Act was not proved by the plaintiff in the instant case and, therefore, the suit for eviction was not maintainable. (3) The suit was not maintainable for a part of the tenanted accommodation. (4) The defendant was not a defaulter under Section 3 (1) (a) of the repealed U. P. Act III of 1947. (5) The defendant was entitled to an abatement of rent on account of deprivation of amenities and denial of quiet enjoyment. (6) Damages were wrongly awarded at the same rate as rent even though the defendant was not enjoying the amenity of electric connection to which he was entitled as a tenant. (7) Certain remaining observations against the defendant in the trial court' s judgment needed to be expunged along with certain other observations which were earlier directed to be deleted by the lower appellate court.
(3.) SRI K. L. Grover, learned counsel for the plaintiff -respondent, contested the aforesaid submissions made by the defendant appellant. However, it may be stated that SRI Grover did not object to certain adverse observations made in the trial court' s judgment against the defendant being deleted. Before considering the aforesaid contentions made on behalf of the rival parties, it may be stated that at an earlier stage, this court framed and remitted the following three issues to the lower appellate court for the latter' s finding. - " 1. What is the normal time taken for the service of registered local letters in Kanpur? 2. What is the date on which 73-Ka. 1 was taken by the postman to the plaintiff for delivery? 3. Whether the defendant had sufficient funds on the 19th February, 1959 so that the cheque issued by him in favour of the plaintiff could be honoured?;