JUDGMENT S.S. Dhavan, J. - This is a landlord's second appeal against a decree of the Addl. Civil Judge, Jhansi dismissing his suit for ejectment of the tenant. The facts are these: The Plaintiff Appellant, Mohd. Ismail, is the owner and landlord of a house in Jhansi, a portion of which was let out on rent to the Defendant Hafiz Noor Ilahi after he had obtained an allotment order in his favour from the Rent Control and Eviction Officer. It appears that the landlord and the tenant fell out and the former accused him of having sublet portions of the accommodation to others without his authority. There was also some dispute over the amount of rent. Ultimately the landlord served a notice of demand on the tenant u/s 3(1)(a) of the RC and E Act asking him to pay arrears of rent at the rate of Rs. 8 per month. Not receiving the amount, he filed the present suit for ejectment and the arrears of rent. 2. The tenant contested the suit. He admitted the tenancy but alleged that no rent had been agreed between the parties or fixed by the landlord u/s 5(2) of the UP RC and E Act. He also alleged that he had made remittances by money order at the rate of Rs. 4 per month but the landlord had refused them. 3. The trial court believed the tenant's version that he had made remittances which had been refused by the landlord. Accordingly it dismissed the suit for ejectment on the ground that there was no question of default when the tenant was prepared to pay rent and the landlord was not willing to accept it. On appeal the learned Civil Judge held that the tenant's story that he had made regular remittances at the rate of Rs. 4 per month was doubtful and he was not prepared to accept it. It is common ground that the tenant sent one remittance of Rs. 4 which was refused. He, however, held that no rent had been agreed between the parties or fixed by the landlord u/s 5(2) of the RC and E Act, and that in these circumstances the tenant was not guilty of failure to pay arrears of rent within the meaning of Section 3(1)(a) of the Act even if he had not remitted the amount demanded by the landlord. He, therefore, confirmed the decision of the trial court though for different reasons and dismissed the suit for ejectment. Aggrieved by this decision the landlord has come to this Court in Second Appeal. 4. Mr. J.N. Chatterji, Learned Counsel for the Appellant contended that the decision of the lower appellate court is erroneous and in conflict with two decisions of this Court in Lala manohar Lal v. Lala Bimal Kumar 1955 AWR (HC) 395 and Ram Pratap v. Sri Panna Lal 1956 ALJ 787. In both these cases it was held that in case of a dispute between the landlord and the tenant over the amount of rent due, the latter cannot take shelter behind the dispute and refuse to pay anything, but is bound to pay what he thinks is due from him. I think, after perusing these two judgments that they are not applicable to the facts of the present case. In both of them it was common ground between the landlord and the tenant that there was an agreement fixing the rent and the dispute was confined to the rate. The court framed an issue on the rate of rent and held that it was settled at the rate alleged by the tenant, and further that the tenant had not paid the rent even at the rate admitted by him. The facts of the present case are altogether different. The tenant denied that any rent had been agreed between the parties and the finding of the court is that the amount of rent was neither settled by agreement nor fixed by the landlord in the exercise of his right u/s 5(2) of the RC and E Act. In view of this finding the rate of Rs. 8 per mensem demanded by the landlord is invalid. It is true that the tenant had stated in his written statement that he had remitted rent at the rate of Rs. 4 per mensem but this statement does not, in my opinion, amount to an admission that he thought that the rent was due from him at this rate This interpretation is negatived by his express statement in another paragraph that no rent had been settled between the parties. The reason why he made one remittance of Rs. 4 per mensem but this statement does not, in my opinion, amount to an admission that he thought that the rent was due from him at this rate This interpretation is negatived by his express statement in another paragraph that no rent had been settled between the parties. The reason why he made one remittance of Rs. 4 is a matter of some speculation, but it is not unlikely that he tendered the rent with a view of settling the controversy over the amount of rent. If the landlord had accepted the rent tendered by the tenant, the rate of rent would have been settled by agreement implied from the conduct of the parties. But he refused it and the dispute continued, but the amount of rent 'was not settled. The landlord could have resolved the dispute by invoking his right u/s 5(2) and fixing the rent at an amount not exceeding the reasonable annual rent of the accommodation. But he did not do so, and the rent remained uncertain. 5. In a case like this, the legal position is somewhat peculiar. If the tenant occupied the accommodation under an agreement of tenancy and is enjoying the use of it though the rent was not fixed, he cannot claim that no rent is due from him; and his obligation to pay rent is somewhat similar to that person who enjoys benefit of any non-gratuitous act and is bound to pay reasonable compensation for it. But the landlord is not entitled to treat the tenant as a defaulter u/s 3(1)(a) of the Act. The clause contemplates a tenant who has failed to pay arrears of rent to the landlord in spite of a notice of demand; but if no rent has been settled between the parties or fixed by the landlord u/s 5(2) of the Act or otherwise determined according to law, the tenant cannot be accused of failure to pay the rent on demand for the simple reason that there is no certainty about the amount of rent. If the tenant alleges that the rent was fixed at a rate lower than what is claimed by the landlord, but does not pay even according to his own rate, he is a defaulter; but it he alleges that no rent was fixed at all and the court accepts his version, his failure to pay on demand does not make him a defaulter for a tenant cannot make payment without knowing how much he has to pay. The landlord is not without remedy for compelling the tenant to pay a reasonable rent, but he cannot treat the tenant as a defaulter u/s 3(1)(a) of the RC and E Act as long as the rent is not settled or fixed by the landlord or determined according to law. 6. Mr. Chatterji relied upon the following observation of Mr. Justice Agarwala in Ram Pratap v. Sri Pannalal 1956 ALJ 787: As soon as a notice of demand is served upon a tenant it is his duty to pay such amount as he thinks due from him.... But there is no justification for the tenant to remain silent and not to pay even the amount which, according to him; is due and then to claim that the notice was invalid and that he was not liable to ejectment. 7. Learned Counsel contended that even assuming that the landlord had demanded rent at an exorbitant rate (as subsequently held by the Court), it was the duty of the tenant in this case to remit the amount which he thought was due from him. Mr. Chatterji pointed out that the lower appellate court had reversed the finding of the trial court that the tenant had tendered the rent, and contended that in view of this finding the tenant's conduct in paying no rent amounts to default according to the observation quoted above. I do not agree. The observation of Mr. Justice Agarwala must be interpreted in the light of the facts of the case in which it was made. The landlord had alleged in that suit that the agreed rent was Rs. 15 per month but the tenant had stated in his defence that the rent was Rs. 6. It was, therefore, common ground between the parties that there was an agreement settling the rent and the controversy related only to the amount. The landlord had alleged in that suit that the agreed rent was Rs. 15 per month but the tenant had stated in his defence that the rent was Rs. 6. It was, therefore, common ground between the parties that there was an agreement settling the rent and the controversy related only to the amount. The court held that the tenant's version was true and the rent had been fixed at the lower rate but as the tenant had not tendered any rent even according to his own version of the agreement, he was adjudged a defaulter. In the present case the tenant denied that any rent had been settled between the parties or fixed by the landlord. The question of his thinking what amount of rent was due from him according to his own version does not arise. I have already observed that his conduct in making one remittance at the rate of Rs. 4 cannot be interpreted as an admission that there was any agreement about the amount of rent. 8. This case must, therefore, be decided on its own facts. These are: (1) that there was an agreement of tenancy (2) that the amount of rent was neither settled between the parties nor fixed by the landlord, (3) that the rent was demanded by the landlord at the rate of Rs. 16 per month which is higher than the annual reasonable rent and which he had no power to fix u/s 5(2) of the Act, and (4) that the rent was never paid by the tenant. In this situation, as already observed by me, the tenant cannot be adjudged a defaulter as he was not in a position to know what the ultimate settlement between the parties would be. The position would have been different if the landlord had fixed the rent u/s 5(2) and then asked the tenant to pay it. at that rate. He did not do so. He is to thank himself for the consequences of his omission. 9. This appeal must, therefore fail and is dismissed. In the circumstances of the case I direct the parties to bear their own costs throughout. Leave to appeal is refused.