M. M. Gupta, J. - (1.) THIS revision has been filed by one Kalloo Miyan against the decree for eviction and arrears of rent passed against him.
(2.) THE defendant applicant is the tenant in a portion of House No. 701/820 Old Katra, Allahabad. THE house was purchased by the plaintiff-opposite party, Srimati Champa Devi on 15th April, 1969. It was claimed that after that date the applicant did not pay any rent, hence a notice under Section 106, Transfer of Property Act terminating applicant's tenancy was given. In that notice it was claimed that the applicant was in arrears of rent from 15-4-1969 to 31st December, 1970. THE notice was given in January, 1971. THE arrears of rent claimed were Rs. 108.75 at the rate of Rs. 5 per mensem. Besides, the expenses for the notice were also claimed. After the expiry of the period of notice, the suit was filed on 25-2-1971. In the course of the written statement it was claimed that the rent of the accommodation was only Rs. 2/- per mensem and not Rs. 5/-, as, claimed by the plaintiff-opposite party. After the receipt of the notice a money order for Rs. 40/- was sent on 28-1-1971, but that was refused. It was also claimed that on 30th May, 1970 the applicant had also sent a money order of Rs. 26/- which was also refused by the opposite party. It was further claimed that the applicant had not committed any default and the suit was not maintainable. THE written statement was also amended during the pendency of the suit and it was further claimed that the rent for the month of April, 1969 was paid to the predecessor of the plaintiff-opposite party. THE payment was made to Srimati Shanti Devi, the previous landlady on the assurance that she would not deny it. The courts below have given a finding that the rent of the premises was Rs. 2/- and not Rs. 5/- per mensem, as claimed by the opposite party. They found that at that rate the applicant had tendered the entire arrears of rent after the notice excepting Re. 1/- which was due for the period from 15th April to 30th April, 1969. Thus, the applicant committed default of Re. 1/- only within the meaning of Section 3 (1) (a) of the U. P. (Temporary) Control of Rent & Eviction Act, 1947 (Act III of 1947) and as such he was entitled to eviction. In revision before me it is contended that the applicant had not committed any default as he had tendered 13 months' rent which was wrongfully refused and he also paid the rent due for April, 1969 to Srimati Shanti Devi, the predecessor of the opposite party. The question that, therefore, arises for determination in this revision is whether the default was committed within the meaning of Section 3 (l)(a) of Act III of 1947 or not. According to the notice the arrears were Rs. 10250, which was the rent from 15-4-1969 to 31-12-1970. A sum of Rs. 10/- was also claimed towards costs of the notice. The rent was claimed at the rate of Rs. 5/- per mensem. It is obvious that this notice was given for a much exaggerated amount than what was actually due according to the findings of the Court below. It is not disputed that on 30th May, 1970 the applicant had sent a money order for Rs. 26/-. This money order was refused. The opposite party had no justification for refusing this money order. It is claimed on behalf of the opposite party that since the entire amount due was Rs. 27/-on that date and not Rs. 26/-, she was justified in refusing this money order. I am unable to accept this contention. Even if the amount of Re. 1/- for the period from 15th April to 30th April, 1969 was due, this money order could not be refused. It was the duty of the land-lady to have accepted the amount and sue for the balance, if any, was in arrears. It is obvious that this money order was refused as the land-lady wanted to claim the rent at the rate of Rs. 5/- per mensem while the amount tendered was at the rate of Rs. 2/- per mensem.
(3.) IN a Full Bench case of this High Court : Mst. INdrasani v. Din Ali, 1968 AWR 167 it was observed at page 173 (paragraph 16) : "It will thus appear that a tenant who has made a valid tender of the rent which fell due, in law cannot be treated as a tenant in arrears of rent nor even can the rent be said to be in arrears although the amount actually still remains payable to the landlord whether in the hands of the tenant or in deposit in court." A Division Bench of this Court (Lucknow Bench) in Debi Prasad v. Jia Lal, 1978 AWC 118 observed: "The defendant, as stated earlier, had remitted rent for three months after deducting a sum of Rs. 9.00 towards repairs. This remittance was made by money order which was refused by the plaintiffs on 13-1-1966. The rent was specifically tendered for the period from 24-8-1965 to 23-11-1965. In view of that refusal to accept the money order it would be deemed that the rent for the said period was duly tendered and paid to the landlord for the purposes of determining whether the defendant had committed default within the meaning of Section 3 (1) (a) of the U. P. Act 3 of 1947." ;