- (1.) The petitioner filed an application for ejectment of the respondent on, inter alia, the ground of non-payment of rent. He claimed that Rs. 288/- were due as arrears of rent from the respondent at the rate of Rs. 24/- per mensem. Exhibit D 1 is a copy of the petition for ejectment. In his written statement Exhibit D 2, the tenant-respondent took up the plea that the rate of rent of the premises in question was only Rs. 12/- and not Rs. 24/- per mensem, and that the present petitioner had been refusing to accept the rent tendered to him by money order from time to time. He specifically denied the right of the petitioner to claim and receive Rs. 288/- at the rate of Rs. 24/- per mensem, and claimed that he was entitled to only Rs. 144/- at the rate of Rs. 12/- per mensem.
(2.) At the first hearing of the ejectment proceedings, the respondent, however, paid without any demur the total amount which could be due to the landlord-petitioner by calculating the rent at Rs. 24/- per mensem, and also adding thereto the amount of costs and interest. Exhibit D. 3 is a copy of the statement made by the counsel for the landlord-petitioner accepting the sum of Rs. 406/- which was unconditionally offered to him by the tenant respondent. This is what the counsel for the present petitioner stated :- "I have received the arrears of rent till 28-2-1970, along with costs and interest amounting to Rs. 406/-. The ground of non-payment of rent is given up." Thereupon the Rent Controller framed two issues. The first related to the question of the alleged requirement of the premises by the landlord for his personal use, and the second was "relief". Despite the specific plea taken up by the tenant in his written statement about the rate of rent being Rs. 12/- per mensem, and not being Rs. 24/- he not only tendered the rent at the rate of Rs. 24/- per mensem unconditionally, but also did not press that plea into any issue. It was on that basis that the ejectment case was decided.
(3.) Thereafter the tenant-respondent filed a suit for the recovery of Rs. 180/- which he claimed to have paid in excess of the amount of rent actually due to the landlord-petitioner on the basis that the correct rate of rent was Rs. 12/- and not Rs. 24/- per mensem. The suit was dismissed by the trial Court, but has been decreed by the lower appellate Court. To finding of fact recorded by the lower appellate Court is that the correct rate of rent was Rs. 12/- per mensem and not Rs. 24/- per measem. That finding has been called in question in the present proceedings.;