BHARGAVA, J. - (1.) THIS is a second appeal by the defendant in a suit for recovery of rent and ejectment.
(2.) IT was alleged that defendant was a tenant of the house situated in Gopalji ka-Rasta, Jaipur, at a monthly rental of Rs. 7/ -. No rent note is alleged to have been executed by the defendant and it was alleged that it was an oral tenancy. The suit for eviction was based on the ground that the defendant had not paid rent for eleven months and he had committed three defaults within a period of eighteen months and was thus liable to ejectment. A notice for terminating the tenancy was also served on the defendant on the 6th April, 1959, but with no-result; and hence the present suit. The defendant admitted the tenancy, but stated that the rent was payable annually at the rate of Rs. 7/-per month. The trial court framed the following issues: - (1) Is the tenancy monthly and was it agreed that the rent was to be paid month by month? (2) If issue No. 1 is decided against the plaintiff, is the notice invalid? (3) Is the tenancy annual and yearly rent was paid in one lump sum, and if so, what is the effect? (4) Relief. The parties did not choose to produce any evidence in the case. On behalf of the plaintiff, a memorandum containing the entries regarding receipt of rent from 1948 was produced. On behalf of the defendant, a receipt for Rs. 84/- in respect of the rent due from 4th June, 1957 to 3rd June, 1958 was produced, and this receipt, which is dated the nth July, 1958, was admitted by the plaintiff. A money order coupon dated 24th April, 1959 was also produced in evidence by the defendant to show that immediately on receipt of a notice by the plaintiff demanding rent from him, he remitted Rs. 70/- for the rent due to the plaintiff by money order, but the plaintiff refused to accept the money order. On the basis of these documents, it was contended on behalf of the defendant that there was an agreement between the parties that the rent would be payable annually. It was further contended that there was no intention on the part of the defendant to make any default in the payment of rent because as soon as the rent was demanded of him, he sent it to the plaintiff by money order. The trial court relying upon Chironjilal Poddar Vs. Madhusudan Thakur (1) and Birdhichand Sobharam Pawar Vs. Manaklal Pyarelal Halwai (2), held that because the rent from 4th June, 1957 to 3rd June, 1958 was paid in one lump sum, and previously too rent was paid in one lump sum, sometimes for a period of three months and at other times for a period of six months and even after fourteen months, it can be inferred that there was implied contract that the rent was not payable monthly. In that view of the matter, the suit for eviction was dismissed and a decree for Rs. 95. 4. 0 for arrears of rent only was passed. On appeal by the plaintiff, the Senior Civil Judge held that the cases relied upon by the trial court were distinguishable because the provisions of law in those States were quite different from the law prevailing in Rajasthan. As it was evident, that rent was not paid by the defendant for eleven months and three defaults of two months each were committed within a period of eighteen months, he held the defendant liable to ejectment, and, therefore, granted a decree for ejectment also to the plaintiff. In this appeal, learned counsel for the appellant has placed reliance upon the aforesaid cases and has urged that from the conduct of the parties, it should be inferred that the rent was payable annually and not monthly. It is not disputed before me that the tenancy in this case would be a monthly tenancy. Once that is conceded, the rent becomes due at the close of the month, unless there is an express or implied contract to the contrary. In the present case, in paragraph (1) of the written statement, it is stated that the rate of rent mentioned was Rs. 7/- per month, but that it was payable annually. The defendant neither examined himself nor adduced any other evidence to prove this agreement. My attention is drawn to the memorandum filed by the plaintiff in this case. That memorandum shows that many a time the rent was regularly paid from month to month. It also shows that at other times the rent was paid some time after three months, sometimes after six months or even after fourteen months. It undoubtedly shows that even though irregular payments were made by the defendant they were accepted by the landlord. But these entries do not go to support the defendant's case that there was an agreement between the parties that the rent was to be payable annually. Had that been so, payments would not have been made from month to month, or after three months or six months. Merely from this fact that the landlord had accepted irregular payments of arrears of rent in a case of monthly tenancy, an inference cannot be drawn that the rent was not payable monthly and that there was an implied agreement to pay it annually. On the materials on record, I am, therefore, not satisfied that there was any express or implied agreement between the parties that rent will be paid annually. The cases relied on by the learned counsel are quite distinguishable. In the Madhy Pradesh case, there was an agreement between the parties that the rent was payable for 12 months. It was because of this agreement that it was observed that: "sec. 106 makes no provision for any presumption as to the time for payment of rent in the case of a tenancy presumed to be from month to month. The matter must therefore be regulated by contract. It is true that where the tenancy is, by agreement, from month to month, the tenant is, under the ordinary law, bound to pay rent to the landlord on the 1st day of the succeeding month unless there be any contract to the contrary governing that matter. However, where. as in this case, there was no contract that a particular sum was payable as rent per month and all that appears to have been agreed was that a sum certain was payable for 12 months, that law does not apply. It may be that the agreement to pay a certain sum as rent for 12 months being an integral part of the lease which could be created only by a registered instrument is not provable. Even so, it is manifest from the conduct of parties as appearing from the evidence on record that the petitioner used to pay to his landlord (predecessor of the respondent No. 1) a consoli dated sum as tent for 12 months after deducting white-washing charges. " Similarly, in the Patna case special arrangement alleged by the tenant found support from the conduct of the landlord and it was therefore observed that: "in most cases, no doubt, the point of time at which rent becomes due is the close of the period in respect of which it is to be paid. But this is not necessarily always the case. Special contract, either express or implied may make a rent due at a point of time different from the close of the period in respect of which it is to be paid. What therefore, should be the time of payment would depend upon the express agreement between the parties, or on an implied agreement as evidenced by the conduct of the parties in course of their dealing, inter se after the inception of the tenancy. In the present case it was admitted that the landlord used to accept rent in one lump after four months, or sometime even after five months, although no doubt he used to grant receipts for each month separately. It is clear, therefore, that he waived the notice which was mentioned at the foot note of his rent receipts. The very fact that in the foot note he mentioned that in default of payment of rent, for more than two months the tenants would be liable to be evicted clearly goes to show that the landlord agreed to accept the rent not at the close of every month nor at the close of even two months, but there after. The conduct of the landlord also clearly supports the arrangement agreed to between the parties, and, as such it cannot be said that there had been, in the special circumstances of the present case, a non-payment of rent within the meaning of Sec. 1 l (l) (a) of the Act. " In the present case, as stated above) even from the conduct of the parties it cannot be inferred that there was an implied agreement that the rent was to be payable annually. The payment of rent was from month to month for a number of times or for a period of two months, three months and six months which runs counter to the alleged case of implied arrangement. In my opinion, as the tenancy in the present case was from month to month, and since the defendant failed to pay rent for a period of eleven months and thus committed three defaults within a period of eighteen months, he is liable to be ejected from the premises. I, therefore, dismiss this appeal with costs. I am told by the learned counsel for the appellant that the appellant is in occupation of this house since 1944 and the members of his family are living in that house. He, therefore, prays that some time may be allowed to him to search out some other suitable accommodation. Three months' time is allowed to the defendant-appellant to vacate the premises, otherwise he will be liable to ejectment in the execution of the decree. . ;