Bapna - (1.) THESE two cross appeals arise in a suit for ejectment and recovery of rent. The plaintiff Purushottam filed a suit against Radha Vallabh, Rampal, Sriram and Ramroop defendants on the 17th of January, 1946 (Pos Sudi 15 Samvat 2002) for ejectment in respect of a shop situated at Sojat leased by the plaintiff to the defendants on the 22nd of May, 1936 (Jeth Sudi 2 V. Samvat 1993) on the allegation that under the agreement of lease, rent had been fixed at Rs. 111/-per year and the defendants had paid rent up to Baisakh Sudi 2 V. Samvat 2002 but that thereafter the defendants neither paid the rent nor vacated the premises. It was alleged that a notice bad been served on the defendants on l6th of July, 1945, but to no effect. The plaintiff claimed that the defendants should be ejected and they should be called upon to pay Rs. 129/8/- as arrears of rent calculated for two months at the rate of Rs.111/- per year and for the subsequent six months at the rate of Rs. 222/- per year. It was also prayed that the defendants should be called upon to pay rent at Rs.222 per year till the date of delivery of possession.
(2.) THE defendants admitted being lessees from the plaintiff but stated that they were ready and willing to pay the rent and had offered the same to the plaintiff but he had refused to take it. It was alleged that the notice to quit was invalid as according to the terms of the deed 3 months' notice was necessary. THE claim for enhanced rent was denied and it was stated that the plaintiff was not entitled to delivery of the possession of the shop under the provisions of the Rent Control Act. It may be stated that the agreement of lease dated the 22nd of May, 1936, produced by the plaintiff is the foundation of the rights between the parties. It provides rent to be paid at the rate, of Rs. 111/- per year by six monthly instalments and it is mentioned that the lessees were bound to keep the shop for two years whereafter it can be vacated on three months' notice on either side. The notice dated 16th July, 1945, demands that the defendants should vacate the shop in 4 days and it is mentioned that in default, the plaintiff will claim rent at double the stipulated amount. The Trial Court after evidence held that the notice of ejectment was bad in law, that the defendants did not make any default in payment but had offered the rent to the plaintiff which he had refused to take. He held that the plaintiff was not entitled to decree for ejectment. Curiously enough, he held that as the plaintiff had served notice on the defendants for increasing the rent, he was entitled to charge at the increased rate and decreed the plaintiff's suit for Rs. 129/8/- as prayed for with costs. He also directed that in future the rate of rent payable would be Rs. 200/- a year. Both the parties filed appeals which were dismissed. The plaintiff has filed the appeal to this Court claiming that he was entitled to the relief of ejectment of the defendants. The defendants have come up in appeal claiming that they are not liable to an enhanced rent and that they should have been allowed the cos's of the suit. The plaintiff's appeal is taken first. It was conceded that the notice to the defendants to vacate the shop in 4 days is not according to the terms of agreement but it is argued that that notice should be deemed to have become operative even when the defendants did not vacate the shop after 3 months. It was also argued that the plaintiff was entitled to the relief because by non-payment of rent for 8 months, the defendants must be deemed to have remained in default for 3 consecutive months as laid down in S. 11 of the Marwar House Rent Control Act of 1949. Another ground in support of the relief urged by the learned counsel for the plaintiff-appellants is that the shop was required by the plaintiff for his own use. In my opinion, none of these contentions are sound. In the deed of lease which is for an indefinite period after the first two years, the mode of determination of the tenancy is agreed upon to be by a 3 months' notice to quit. The plaintiff having failed to give notice as provided in the agreement, the tenancy was not determined and when the tenancy was not determined by the notice, it did not come to be determined by lapse of period only. Reference may be made to 1920 Pat. 334. The effect of an invalid notice is that it is of no value. According to the agreement of lease, the rent was payable at 6 months' interval and, therefore, Clause (a) of Sec. 11 of the Marwar House Rent Control Act which provides for the accrual of the right of the land lord to eject a tenant on failure to pay rent for 3 successive months is inapplicable. The alternative clause of the accrual of such right on the lessee being a habitual defaulter can only be applicable but it is conceded that only two months had elapsed beyond 6 months when the rent had become payable. It has not been alleged that any defaults were made on earlier occasions and, therefore, the plaintiff has no right to seek ejectment on the basis of Clause (a) of sec. 11 of the Marwar House Rent Control Act. As regards the argument that the plaintiff required the shop for his own use, it is sufficient to observe that this ground of claim was not mentioned in the plaint and there is no issue in this case. This ground was no doubt mentioned in the notice dated 6th July, served on the defendants but the omission to take this as a ground of the suit is fatal to this contention in this Court. The two courts have rightly rejected the plaintiff's claim for ejectment of the defendants. As to the defendants' appeal, it is obvious that as the notice to quit has been held to be invalid, the plaintiff had no right to claim enhanced rent. Both the courts have concurred in the view that the notice to quit was improper and it is a matter of surprise to see that the plaintiff has been allowed rent at an enhanced rate. According to the provisions of the Marwar House Rent Control Act, the parties have to approach the Rent Controller is either the lessor or the lessee thinks that the rent fixed by the agreement should be enhanced or reduced. In respect of the enhancement of rent, there is a condition laid down in sec. 5 that no tenant shall be required to pay a higher rent during the currency of an existing lease unless the tenant has agreed to some addition, improvement or alteration being carried out in the house on the understanding that he would pay a higher rent and such higher rent is approved by the Controller. The courts below thus acted contrary to the provisions of law in allowing the plaintiff enhanced rent claimed by the plaintiff in his notice. As regards the rent for 8 months, the defendants did not deny their liability and I agree with the two courts that the defendants were ready and willing to pay the same. Their omission to pay the 6 months' rent on the stipulated date can only make them liable for costs for that amount. For the remaining reliefs which the plaintiff has claimed and which he cannot be allowed by the Courts, he should pay costs to the defendants. As a result of the above findings and observations, the plaintiff's appeal is dismissed with costs in this Court and the Courts below. The defendants' appeal is accepted. The decree in plaintiff's favour for rent will be reduced from Rs. 129/8/- to Rs. 74/-for a period up to Pos Sudi 2 Samvat 2002. They will pay costs to the on this amount in the Court of first instance. The remaining suit of the plaintiff is dismissed and the defendants will get costs in the Trial Court according to the success and full costs in the Court of first appeal and this Court. ;