Gyanendra Kumar, J. - (1.) I have had the advantage of reading the judg ment of Trivedi, J. It is not necessary to reiterate the facts of the case which are clearly contained in his judgment. However, it may be recollected that the trial Court had dismissed the suit in toto. But on appeal, it was decreed by the Civil Judge, who granted three reliefs to the plaintiff, viz. (a) ejectment of the defendant, Behari Lal (since deceased) from the premises in question, (b) re covery of Rs. 41.00 as arrears of rent from 22-10-1958 to 14-12-1958 and (c) recovery of damages for use and occupation at the rate of Rs. 23.00 per month from the date of termination of tenancy to the date of defendant's ejectment
(2.) IT cannot be doubted that so far as the decree for arrears of rent and dama ges for use and occupation is concerned, the present appellants (who are the per sonal heirs and legal representatives of the deceased defendant, Behari Lai) would be liable to pay the same to the extent of the assets inherited by them from the deceased, I, therefore, respect fully agree with the finding of my brother Trivedi that they were competent to file the instant second appeal in this Court. I further agree that the deposit of the decretal amount of arrears of rent by Behari Lal, under Order XXI, Rule 1, C.P.C.within one month of the receipt of the notice of demand, amounted to valid payment to the landlord decree-holder himself, within the meaning of Section 3 of the U.P. (Temporary) Con trol of Rent and Eviction Act.It may also be remembered that the subsequent arrears of rent had further been directly paid by the defendant to the landlord, within one month of the aforesaid notice. The result was that no arrears of rent remained due from the defendant at the time of the institution of the suit. Conse quently, there could be no default or failure on the part of the tenant to pay any arrears of rent, as none existed at the time of the filing of the suit That being so, the landlord had no cause of action for instituting the suit either for eiectment or for recovery of rent and damages on the ground of alleged de fault of the tenant hi payment of rent, in spite of notice of demand.
(3.) UNDER Section 3 of the Act there was also a statutory bar against the insti tution of such a suit.In fact, Trivedi, J. has himself observed; "In view of my finding that Behari Lal did not commit any default within the meaning of Sec tion 3 of the Act, no suit for his ejectment could have been legally filed. If Behari Lal could not be ejected, his status continued to be that of a tenant, with the result that a decree for mesne profits could not have been passed against him."Towards the end of his judgment, Trivedi, J. again held that the decree in question "was a wrong decree"' and that "the suit was not maintainable". Needless to re peat that inasmuch as there were no arrears of rent due against the defendant and he still continued to be a statutory tenant, in spite of the termination of his contractual tenancy under the Transfer of Property Act, there was no case for ejectment of the tenant and recovery of arrears of rent, much less for mesne pro fits. Thus it proved to be a case of total want of cause of action or right of suit In the plaintiff, so far as it was based on the ground of supposed default of payment of arrears of rent by the tenant;