Babu Lal v. I Additional District Judge, Aligarh — 1980 DIGILAW 1177 (ALL)

ORDER S.D. Agarwala, J. - This is a petition under Article 226 of the Constitution of India challenging the orders dated 30th November, 1973 passed by the 1st Additional Munsif, Aligarh and the order of the 1st Additional District Judge, Aligarh dated 2nd April, 1976 passed in revision. 2. The petitioner is the landlord. The suit was filed by him against respondents Nos. 3 and 4 for arrears of rent, damages and for ejectment. The case of the petitioner was that Ram Chandra Saxena was the tenant in the house detailed at the foot of the plaint at the rate of Rs. 10/- per mensem. Ram Chandra Saxena sublet the house to Raghubir Prasad. It was further alleged that rent was due from 6th April, 1966 to 5th September, 1971. A notice of demand was sent on 2nd September, 1971 which was served on 3rd September, 1971 but the tenant did not pay the arrears of rent in spite of the receipt of the notice of demand. Thereafter a notice determining the tenancy was issued to the respondents on 6th October, 1971 which was also served and since the respondents did not vacate the premises hence the suit. The suit was contested by respondent No. 3 on the ground that he had not sublet the house to respondent No. 4. It was further alleged that he has not committed default in payment of rent and that the notice for ejectment is illegal and invalid. Respondent No. 4 did not put in appearance and the suit proceeded ex pane against him. 3. The trial court dismissed the suit for ejectment on 30th November, 1973 and decreed the suit only for Rs. 368/-. The trial court recorded a finding that respondent No. 3 was not a defaulter. It further recorded a finding that the tenancy of the respondents Nos. 3 and 4 had not been legally determined. The judgment of the trial court dated 30th November, 1973 was challenged in revision by the petitioner. The revisional court only adverted to the question as to whether respondent No. 3 can be held to be a defaulter or not. It agreed with the view of the trial court that respondent No. 3. could not be held to be a defaulter in the eye of law and as such the revision was dismissed on 2nd April 1976. 4. It agreed with the view of the trial court that respondent No. 3. could not be held to be a defaulter in the eye of law and as such the revision was dismissed on 2nd April 1976. 4. Learned counsel for the petitioner has urged that respondent No. 3 is clearly a defaulter in the eye of law and the view to the contrary taken by the trial court as well as by the lower revisional court is manifestly erroneous. 5. I have heard learned counsel for the parties. In my opinion the contention of the petitioner is well founded. The notice of demand was sent on 2nd September, 1971. This notice of demand was received by respondent No. 3 on 3rd September, 1971. Under section 3(1)(a) of U.P. Act No. 111 of 1947 respondent No. 3 had to pay the arrears of rent within one month of the receipt of the notice of demand. Admittedly he did not pay the same. In the circumstances respondent No. 3 was clearly a defaulter. 6. Assistance has been taken by respondent No. 3 on the basis of the second notice which was issued under section 106 of the Transfer of Property Act. This notice was sent on 6th October, 1971, which was served on respondent No. 3 on 7th October, 1971 and respondent No. 3 sent a money order on 30th October, 1971, which was refused by the petitioner. The subsequent notice dated 6th October, 1971 was a mere notice terminating the tenancy. It cannot possibly have the effect of waiving the earlier notice dated 2nd September 1971. The trial court as well as the lower revisional court have on the basis of the fact that a money order was sent on 30th October, 1971 held that respondent No. 3 is not a defaulter. This view has been based on the basis of a decision of this Court in Israr Ahmad v. Sant Ram, AIR 1971 Allahabad 559. The principle laid down in the case of Israr Alrmad (supra) does not apply to the facts of the present case. In the case of Israr Ahmad the question for decision was as to the effect of a deposit made under section 7-C of U. P. Act No. III of 1947. The principle laid down in the case of Israr Alrmad (supra) does not apply to the facts of the present case. In the case of Israr Ahmad the question for decision was as to the effect of a deposit made under section 7-C of U. P. Act No. III of 1947. K.B. Asthana, J., as he then was, took the view that once a deposit was made under section 7-C of the Act by virtue of the deeming provision, viz. sub-section (6) of section 7-C, it would be deemed that rent was duly paid every month. It was in view of this deeming provision that K.B. Asthana, J. took the view that the tenant cannot be held to be a defaulter. The facts of this case are clearly different. There is no deposit as was in the case of Israr Ahmad (supra). Here only a money order was sent, which was refused by the landlord. The deeming provision is not applicable to the instant case and as such the principle laid down in the case of Israr Ahmad (supra) does not apply to the present case. A Division Bench of this Court in similar circumstances in B.C. Saxena v. S.C. Verma, 1960 A.L.J. 70. has held that there can be no waiver of the first notice. 7. In the result the petition succeeds and is allowed. The order of the 1st Additional District Judge, Aligarh, is quashed. The Additional District Judge, Aligarh, is directed to decide a fresh on the other questions involved in the case. In the circumstances of the case parties are directed to bear their own costs.