JUDGMENT K. M. Dayal, J. -The present second appeal has been filed by the defendant against a decree for his ejectment from the disputed accommodation. The suit was filed by the plaintiff-respondent claiming that he had first served a notice dated 16th of Dec. 1966 demanding rent from the defendant for the period commencing 1st June 1966 to 30th Nov- 1966. The rent was at the rate of Rs. 12/50 per month. Besides the rent Bhumi Bhawan Kar and electricity dues were also demanded by the plaintiff. It was alleged that the defendant sent a cheque for Rs. 75/- towards arrears of rent alone and refuted his liability to pay the other dues. This cheque was accepted by the plaintiff and subsequently a notice dated 3rd Feb. 1967 was issued to the defendant claiming the other dues and the rent- for the months of Dec. 1966 and Jan. 1967. The defendant again in reply to that notice sent cheque for Rs. 25/- i. e. the rent for two months alone but did not remit any other amount. Finally a notice terminating the tenancy was issued on 28th Tune 1967 but no demand was made in that notice. It was claimed by the plaintiff that the defendant had committed a default in payment of rent and consequently. was liable to ejectment. 2. The defence was that the plaintiff having appropriated Rs. 75/- sent by cheque to him in reply to his notice dated 16th Dec. 1966 was bound by the direction for appropriation under Section 60 of the Contract Act. Obviously the rent up to 30th Nov. stood cleared up and only the matter relating to Bhumi Bhawan Kar and electricity dues remained in dispute. When notice dated 3rd Feb. 1967 was sent the rent could alone be due for the months of Dec. and Jan. and therefore on the date of that notice the rent for more than four months was not due. In reply to that notice again the defendant sent Rs. 25/- by cheque which was accepted and, therefore, even that rent was wiped off. 3. The trial court held that the defendant committed a default in payment of rent as he did not pay the bank commission charged on the aforesaid two cheques from the plaintiff. 4. On appeal the lower appellate court upheld the ejectment and the finding of default on a different ground. 3. The trial court held that the defendant committed a default in payment of rent as he did not pay the bank commission charged on the aforesaid two cheques from the plaintiff. 4. On appeal the lower appellate court upheld the ejectment and the finding of default on a different ground. The lower appellate court held that after the receipt of notice dated 3rd Feb. 1967 the defendant remitted Rs. 25/- by cheque; with that cheque he sent a letter that it was rent for the months of Jan. and Feb. 1967 and the rent of Dec. 1966 had been appropriated towards white-washing chargers. Consequently the lower appellate court held that the defendant was in default for payment of rent of the month of Dec. 1966 and was liable to ejectment. 5. The learned counsel for the appellant has argued that under S. 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 the tenant should have failed to pay the rent which was in arrears for more than three months on the date of notice within a month of receipt of the notice. In the instant case assuming the reasoning of the lower appellate court is correct, on 3rd of Feb 1967 rent for only two months i. e. Dec. 1966 and Jan. 1967 was due. Non compliance of that notice therefore could not make the defendant a defaulter. If the plaintiff was not agreed to the appropriation claimed by the defendant and adjust the rent of Dec. 1966 towards whitewashing he could have refused to accept the cheque and thus shown his disagreement of the appropriation. The plaintiff did not do it. On the other hand he got the cheque cashed, that leads to two conclusions; firstly that the plaintiff agreed to the appropriation of the rent for the month of Dec. 1966 towards annual white-washing charges and secondly accepted the cheque for the period Jan. and Feb. 1967. In any case there could be no default as no rent for more than three months was due. The rent for more than three months has been interpreted by several cases and it has been held by our High Court also. 6. Under the circumstances assuming that the rent for month of December was not paid by the defendant in reply to the notice dated 3rd Feb. The rent for more than three months has been interpreted by several cases and it has been held by our High Court also. 6. Under the circumstances assuming that the rent for month of December was not paid by the defendant in reply to the notice dated 3rd Feb. 1967, there should) be no default as rent for more than three months was not due on 3rd Feb. 1967 when the notice was given. As such the suit was barred by Section 3 of the U. P. Temporary Control of Rent and Eviction Act and could not be decreed for ejectment of the defendant. 7. In the result, the present appeal is allowed. The judgment and decree passed by the lower appellate court for ejectment of the defendant and damages is set aside. It is, however, made clear that if the defendants had made any deposit towards the mesne profits and damages during the pendency of the case, the same may be withdrawn and appropriated by the plaintiff-respondent towards the rent due. The parties are directed to bear their own cost.