M.Y.EQBAL, J. - (1.) THIS appeal under clause 10 of the Letters Patent is directed against the judgment dated 29.9.1995 passed in First Appeal No. 81/85(R) whereby the learned Single Judge allowed the appeal filed by the tenant and set aside the judgment and decree passed by the Subordinate Judge, Ranchi in Title Suit No. 273/83.
(2.) THE present appellant is the owner of the suit property. She constructed building and structures over the suit land in order to start cinema business. The case of the plaintiff -appellant is that she executed a registered deed of lease in the year. 1971 in favour of Amalgamated Films for a period of 51 years. The subject matter of the lease was the land. building and some other incomplete structures. In terms of the lease deed monthly rent of the premises was payable on or before 15th day of each following month and also 2/3rd of the existing and future municipal taxes from the date of commencement of the cinema show, it was alleged that the lessee paid monthly rent upto 1981 and. thereafter assigned the lease hold interest to the defendant -respondent, Sri Sachidanand Das. The plaintiffs case was that the defendant neither paid the monthly rent from February, 1981 nor the municipal taxes. The plaintiff, therefore, terminated the lease with effect from the month of August. 1981 and directed the defendant to vacate the building premises. In reply to the said notice the defendant sent a bank draft dated 25.7.1981 for a sum of Rs. 29,107.11 paise. The plaintiff then filed Title Suit No. 192/81 against the defendant for his eviction from the suit property. The defendant contested the suit by filing written statement. However, the suit was disposed of in terms of compromise petition dated 16.8.1983. The relevant portion of the compromise petition is reproduced hereinbelow : - - "(A) Defendant shall at all time during subsistence of the lease grant four free passes for the highest class to the plaintiff and the plaintiff shall requisition the passes in writing. (B) The defendant shall make the Cinema Hall with its fixtures, fittings, electricity and other accessories including the services of the member of the staff available free of charges to the plaintiff for her use whether for her own purposes or otherwise for six days in calander year to be notified for each occasion by the plaintiff to the defendant in writing atleast 15 days in advance. It shall be the responsibility of the plaintiff to obtain the necessary permission from the concerned authorities. The defendant will in no case be responsible for entertainment tax for holding any show or functions in the Cinema Hall in the said six days. (C) If the defendant at any time during subsistence of the lease intends to transfer his entire or part of his interest in Sandhya Cinema premises to any person or body of persons then the defendant shall intimate to the plaintiff in writing of the said intention and the plaintiff may within thirty days of the receipt of the said notice resume from the defendant his such interest. In case the plaintiff fails to exercise her option to resume such interest within the period reserved hereby then the defendant shall be at liberty to transfer his such interest to any person or body of persons of his own choice. (D) The arrears of rent from October. 1982 to August. 1983 is Rs. 59,683.17 paise and the dues on account of municipal tax from 6.2.1981 to 31.3.1983 is estimated at Rs. 19.927.96 paise which the defendant shall pay to the plaintiff within 45 days from the date of this com promise petition. Failure to make payment within this stipulated period by the defendant shall be deemed as defaulter within the meaning of the law. (E) Other terms and conditions as contained in the deed of lease dated 29th November, 1971 shall remain unaltered and the relation between the plaintiff and the defendant as the lessor and the lessee with regard to the lease hold property being Sandhya Cinema Hall shall be governed by the said deed of lease. (F) The parties agreed to execute and register the necessary deed and instruments within 30 (thirty) days incorporating the aforesaid modification to the original lease and cost and expenses of such deed will be borne and payable in equal one -half shares. (G) For the breach of any of the con -venents reserved hereby by the defendant, the plaintiff shall be entitled to initiate appropriate legal proceeding as provided under the law." The case of the plaintiff -appellant was that in terms of the compromise the defendant did not pay the arrears of rent and municipal taxes within the period fixed in the compromise petition, She then sent lawyers notice dated 11.10.1983 asking the defendant to vacate the premises by 1st of October, 1983 and pay the entire arrears. It is alleged that although there was clear understanding that the plaintiff will not accept the rent and municipal taxes through cheques but the defendant sent two cheques; one for Rs. 59,683.17 paise arid another for Rs. 19.927.96 paise along with a forwarding letter. The defendant again sent a letter to the appellant on 19.10.1983 and bank draft of Rs. 19,927.96 paise. The plaintiff alleged to have received the bank draft without prejudice and returned the cheques. It is alleged that the defendant again sent two cheques for a sum of Rs. 5,500/ - each alongwith forwarding letters dated 19.10.1983 and 14.11.1983, The plaintiff, thereafter, levied Execution Case No. 7/83 for the recovery of the arrears of rent in terms of the compromise decree. The defendant appeared in the said execution case and deposited the decretal amount. The plaintiff. thereafter, filed the instant Title Suit No. 273/83 for his eviction on the ground that the defendant failed to pay the arrears of rent within the time specified in the compromise decree and also the subsequent rent in terms of the original lease deed.
(3.) THE defendant -appellant contested the suit by filing written statement stating. inter alia, that the suit was barred under Section 47 of the Code of Civil Procedure. Defendants further case was that the plaintiff already realised the arrears of rent and municipal taxes vide Execution Case No. 7/83. The plaintiff, thereafter, filed Execution Case No. 1/84 for recovery of the suit property. The defendant contended that the rent for the month of September to November. 1983 was sent to the plaintiff in time as per the regular accepted mode of payment and further the defendant has been sending monthly rent for the month of December. 1983 onwards through cheques by registered post and, therefore, the plaintiff is not entitled to a decree for eviction on the ground of nonpayment of arrears of rent and current rent.;