Judgement JUDGMENT:- The suit for the eviction of the tenants, who were defendants in the trial Court and are appellants before me (hereafter referred to as the "tenants"), was filed in October, 1980 by the landlords, who were plaintiffs in the trial Court, and are respondents before me (hereafter referred to as the "landlords"), on the ground that the tenants defaulted to pay rents since September, 1977 and the suit having been decreed by the learned District Judge the tenants have preferred this appeal. 2. It appears from Para 3 of the plaint and also from the evidence on record that there was a previous suit filed by the landlords, being Civil Suit No. 27 of 1977, in the Court of the District Judge, Gangtok, against the tenants for their eviction from the suit premises on the ground that the same were required for the bona fide occupation of the landlords and also for recovery of arrears of rents for the months of July and August, 1977, and though the suit was dismissed so far it related to the claim for ejectment, it was decreed in respect of the claim for arrears of rents for the two months as aforesaid. It is not disputed that no rent has been paid by the tenants for any period from the month of September, 1977 and in reply to the averments of the landlords made in Para 2 of the plaint to the effect that "the defendants defaulted to pay the rents of the suit premises since the month of September, 1977 and as such the defendants have forfeited their rights to get the benefit of protection against eviction as contemplated under the law", the tenants in para 6 of the written statement have urged that "the plaintiffs refused to receive the rental and as such the defendants had no option but to remain silent till they claim the same" and that "there is no provision under the Gangtok Rent Control Rules to deposit such rental in Court or with the Rent Controller". Mintok Dolma, one of the co-landlords, figuring as P.W.1, has asserted in her examination-in-chief that "the tenants never offered rents of the suit premises to us since the time of their default", that "no rent was offered to us by the defendants by Money Orders", that "they have also not deposited the arrear rents for the defaulting period in Court" and that "if the defendants had offered the rents before this suit, we would have accepted the same". And in her cross-examination also P.W.1 has similarly asserted that "it is not a fact that the defendants offered rents to us" and that "it is not a fact that we refused to accept rents". P.S. Nirash, one of the co-tenants, figuring as D.W.1, has stated in his examination-in-chief that "after the last suit was decided, I offered rent to the landlady" and that "she did not receive the rents", while in cross-examination he has said that "I offered the decretal amount to the decree-holders, but they have refused to accept it" and that "I offered the decreed rents on the date of the judgments in the suit outside the premises of the house of the landlord". So when the statements of D.W.1 in examination-in-chief as well as in cross-examination are read together, one would get the impression that all that was tendered and refused according to D. W. 1 was the rent for the two months of July and August, 1977, decreed in the previous Suit No. 27 of 1977 and no rent for any period from September, 1977 onwards, for which the tenants are alleged to have committed default and for which ejectment is claimed in this suit, rendered by the tenants to the landlords at any time. There can be no manner of doubt that if in answer to the case made by the landlord that the tenant has defaulted in the payment of rent, the only case made out by the tenant is that he tendered the rent but the same was refused, the onus lies heavily on the tenant to prove by satisfactory evidence that he tendered the due amount within the due period to the person to whom it was due. There is no evidence whatsoever as to what amount was tendered and on what date and within what period, from which it can be argued that the tender was valid in law and, therefore, refusal thereof by the landlords absolved the tenants from any liability to be ejected on the ground of default in payment of rent. There is nothing documentary on record to show that the tenants tendered rent and the landlords refused to receive the same. Exhibit D-3 appears to be a refused Money Order for Rs. 140/- only and, apart from the fact that, as rightly pointed out by the District Judge, the refusal having been denied by P.W.1 on oath, the endorsement "refused" on the said Money Order could not, by itself and without the evidence of the postal peon, lead to any presumption that the same was tendered to the addressee and was refused by him, the said Money Order also ex facie related to the amount which was decreed for the rent for August, 1977 in the earlier suit and, therefore, the same could not amount to a tender of rent for the period commencing from the month of September, 1977, for which period the tenants are alleged to have committed default in this suit. And that the said Money Order, Ext. D-3, could not be a tender for any rent for the period of default for which the present suit has been filed, is clinched, so to say, by the statement of D.W.1 to the effect that "I did not send the rents by Money Order". The other co-tenant, Mrs. Nirash, who was examined as D. W. 2 more than three months after her husband D.W.1 was examined, could not improve matters. She came out with a story, not at all corroborated by her husband, of her husband taking Rs. 6,000/- from her in 1980 to pay the rents and "that rent was non accepted by the landlords". As I have already noted, a valid tender must be of the amount due and within the time due and a tender made sometime in 1980 of the amounts due as rents from September, 1977, cannot obviously be a valid tender to protect the tenants from the liability for default to pay rents. As I have already noted, a valid tender must be of the amount due and within the time due and a tender made sometime in 1980 of the amounts due as rents from September, 1977, cannot obviously be a valid tender to protect the tenants from the liability for default to pay rents. As already noted, the defence of the tenants being tender of rents by them and refusal thereof by the landlords, the onus was entirely on them to prove that they made such tender validly and within time and the same was refused. The evidence on this point, as pointed out by the learned District Judge, is almost oath against oath and I do not think that the learned District Judge can be regarded not to be justified in believing the evidence of the landlords in preference to that of the tenants, warranting interference by this Court with his findings of fact. As has been pointed out repeatedly both by our pre-independence apex Court (vide, observations of Lord Atkin in W.C. Macdonald v. Fred Latimer, AIR 1929 PC 15 at p. 18 and the observations of Lord Mac Dermott in Veeraswami v. Talluri Narayya, AIR 1949 PC 32 at p. 33) and also by our post-independence apex Court (vide, observations of Mukherjea, J., in Sarju Pershad v. Jwaleshwari, AIR 1951 SC 120 at pp. 121-122), when the question is undoubtedly one of fact and the decision depends upon the appreciation of conflicting oral testimony, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. 121-122), when the question is undoubtedly one of fact and the decision depends upon the appreciation of conflicting oral testimony, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This does not, as it obviously cannot, mean that the appellate Court shall not or cannot reverse a finding of fact arrived at by the trial Judge, but all that it means is that when there is a conflict of oral evidence of the parties on any matter in issue and the decision hinges on the credibility of the witnesses, then, unless there is some special feature about the evidence which has escaped the notice of the trial Judge or there is a sufficient balance of improbability of displace his opinion as to where the credibility lies, the appellate Court should not as a rule (though of practice and not of law), interfere with a finding of fact. Borrowing from Lord Atkin (in W.C. Macdonald v. Fred Latimer supra, at p. 18), I would say that "there is no sufficient balance of improbability to displace the trial Judge's finding as to the truth of the oral evidence" and I, therefore, accept the finding of the trial Judge on this point. 3. Mr. Udai P.Sharma, the learned Advocate for the tenants-appellants, has however urged that even if the trial Judge is held to be right in holding that there was no payment of rent or no valid tender and refusal thereof, the trial Judge went wrong as he failed to notice that in the earlier Suit No. 27 of 1977, not only rents for the months of July and August, 1977 were decreed, but, as will appear from the certified copy of the judgment Ex. P-3, there was a decree "also for mesne profits at the rate of Rs. 140/- per month from September, 1977 till realisation" and Mr. P-3, there was a decree "also for mesne profits at the rate of Rs. 140/- per month from September, 1977 till realisation" and Mr. Sharma has urged that once mesne profit is decreed for the period for which default in payment of rent is alleged in the suit and the same could be realised in execution of that decree, the tenants were no longer under any obligation to pay any amount as rent and that if the obligation to pay rent ceased, the liability to be evicted for default to pay rent also could not but cease to exist. In the earlier suit, being No. 27 of 1977, the claim for ejectment was dismissed but the claim for arrears of rents for two months preceding the suit was decreed. The tenancy thus not having been determined, the learned Judge was obviously wrong in decreeing mesne profit which, as defined in Section 2 (12) of the C. P. Code, can be payable only by a person in wrongful possession and not by a tenant. The Gangtok Rent Control and Eviction Act, 1956, which governs suits of this nature, does not require any notice of determination of tenancy to precede a suit for ejectment of tenant and it has now been settled by a seven-Judge Bench of the Supreme Court in V. Dhanapal Chettiar v. Yasodia Ammal, AIR 1979 SC 1745 that in order to obtain a decree or order for eviction against a tenant under any such State Act, a notice of termination of tenancy under the provision of Sec. 106, Transfer of Property Act, is not necessary and, therefore, a tenant, even when sued for eviction, continues to be a tenant until the decree for eviction is passed, and, therefore, in the earlier suit a decree for mesne profit could have been passed only for the period from when a decree for eviction, if any, was passed. The judgment in the earlier Suit No. 27 of 1977 was delivered on 19-7-1980 and even assuming that it was a decree for ejectment, which it was not, a decree for mesne profit could, if at all, be passed for a period thereafter and in no case for the pendente lite period in that suit commencing from September, 1977. 4. Mr. 4. Mr. Sharma, however, has relied on the observations of the Supreme Court in State of West Bengal v. Hemant Kumar, (AIR 1966 SC 1061 at p. 1066) to the effect that a wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals and other procedure like review which the law provides and Mr. Sharma has accordingly urged that the decree for mesne profit passed in the previous suit must, even if erroneous, be accepted to be as much binding as a right one and the same absolved the tenant from any liability to pay any amount qua rent and to be evicted for non-payment thereof. 5. It was pointed out to Mr. Sharma that even accepting that the decree for mesne profit in the earlier suit amounted to a "decision" which, however erroneous, was binding on the parties, then in that case the tenants, after such a decree, must be deemed to have ceased to be tenants and to have become persons in wrongful possession and that it is now settled law that in a suit for ejectment, even though the relationship of the landlord and tenant is alleged but not established or proved, the plaintiff shall nevertheless be entitled to a decree for recovery of possession on the strength of his title, if the same is proved on evidence. This was settled as early as in 1902-1903 by two Full Bench decisions of the Allababad High Court in Abdul Ghani v. Mussammat Babni, (1903) ILR 25 All 256 and in Balmakund v. Dalu, (1903) ILR 25 All 498 and now that this principle has been fully confirmed and these two Full Bench decisions of the Allahabad High Court have been expressly approved by the Supreme Court in Bhagwati v. Chandramaul (AIR 1966 SC 735 at p. 739), no further citation should be necessary. Faced with this situation, Mr. Sharma decided not to press this point any further and to proceed to assail the decree under appeal on other grounds discussed hereinafter. 6. Mr. Faced with this situation, Mr. Sharma decided not to press this point any further and to proceed to assail the decree under appeal on other grounds discussed hereinafter. 6. Mr. Sharma has urged that it was pleaded in paras 8 and 10 of the written statement and also proved by evidence that the landlords forcibly dispossessed the tenants from a portion of the suit-premises and, therefore, the tenants became entitled to suspension of payment of rent for such forcible dispossession. Though no Issue appears to have been struck on this point, Mr. Sharma has urged that if a case is made out in the pleading and proved on evidence, absence of any specific Issue to that effect is not material. Assuming the position in law to be so, I am afraid that the allegation of such forcible dispossession cannot be said to have been proved on evidence and the doctrine of suspension of rent cannot be invoked or applied in this case in the manner urged by Mr. Sharma. 7. The law as to the effect of the eviction of the lessee by the lessor from a part of the demised premises cannot be put into any straight-jacket formula. The observations in the decision of the Privy Council in Katyayani Debi v. Udoy Kumar Das (AIR 1925 PC 97 at p. 99) to the effect that "the doctrine of suspension of payment of rent, where the tenant has not been put in possession of part of the subject leased, has been applied where the rent was a lump rent for the whole land leased treated as an indivisible subject" and that "it has no application to a case where the stipulated rent is so much per acre or bigha", were, as pointed out by the Privy Council in the latter decision in Ram Lal Dutt v. Dhirendra Nath, AIR 1943 PC 24 at p. 27, "wrongly taken to lay down that if the rent is a lump sum rent, then in all cases of failure to give possession of any part, there mustbe a suspension of the entire rent" (emphasis added). In Ram Lal's case, the Privy Council pointed out that the doctrine could not be applied to all cases as a matter of course and was not applicable to cases of the lessor's failure to give possession of part of the demised property, as distinguished from cases of eviction or dispossession by the lessor. But as to the applicability of the doctrine even to cases of eviction or dispossession by the lessor, the Privy Council in Ram Lal's case (supra, at p. 29) left the questions open and observed that "whether it should be applied at all to cases of eviction of the lessee by the lessor from a part of the land, and if so, whether it is limited to rents reserved as a lump sum and whether it is rigid or discretionary rule - these questions will call for careful review when they are presented by he facts of a particular case". It has been pointed out in Mulla's Transfer of Property Act (6th Edition, 1973, page 720) that "it now seems fairly clear that there is no rigid and inflexible rule and the technical common law rule of suspension of the entire rent on partial eviction in a case where a lump is reserved by the lease ought not to be applied rigidly in India in every case". No rigidity or inflexibility has also been imparted to this doctrine by the Supreme Court also in Surendra Nath Bihra v. Stephen Court Ltd. (AIR 1966 SC 1361), where after considering the Privy Council decisions in Katyayani Debi (supra) and in Ram Lal (supra) the Supreme Court observed (at p. 1363) as hereunder:- "On the one hand it does not seem equitable that when the tenant enjoys a substantial portion of the property of the landlord, leased to him, without much inconvenience, he should not pay any compensation for the use of the property; ......... On the other hand it is unfair that if a tenant is not given possession of a substantial portion of the property, he should be asked to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of the contract. On the other hand it is unfair that if a tenant is not given possession of a substantial portion of the property, he should be asked to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of the contract. It seems to us that it will depend on the circumstances of each case whether a tenant would be entitled to suspend payment of the rent or whether he should be held liable to pay proportionate part of the rent." On the facts of that case, where the tenant was not given possession of one out of three bed-rooms agreed to be demised, the Supreme Court held that the tenant was not entitled to suspend the payment of the entire rent but that he was liable to pay proportionate part of the rent. 8. Now, in this case, if I could be satisfied on evidence that the tenants were evicted or dispossessed by the landlords from a part of the premises let out to them, it would have been necessary for me to consider as to whether the eviction or dispossession was so substantial as to warrant total or partial suspension of the payment of rent. But on the evidence on record it appears to me that such a case of partial eviction or dispossession or even a case of not giving possession of the entire premises agreed to be let out, has not been proved. While co-tenant P.S. Nirash, as D.W.1, has stated in his examination-in-chief that he took the entire ground floor consisting of 5 rooms and one latrine, but "one of those rooms has been forcibly taken by the landlady under her possession and also the compound in front of the rooms", he has admitted in cross-examination that he has nothing to show that he took 5 rooms originally and that he did not file any complaint with any authority regarding his dispossession from one room and the courtyard by the landlady. The other co-tenant Mrs. Nirash, D.W.2, has however asserted in her cross-examination that "I have many things to show that we were tenants in respect of 5 rooms from 1965 to May, 1972". None of these "many things" has, however, been produced, though, as already noted, this D.W.2 was examined about three months after her husband D.W.1 was examined. The other co-tenant Mrs. Nirash, D.W.2, has however asserted in her cross-examination that "I have many things to show that we were tenants in respect of 5 rooms from 1965 to May, 1972". None of these "many things" has, however, been produced, though, as already noted, this D.W.2 was examined about three months after her husband D.W.1 was examined. And what is more, if such eviction or dispossession from one room was effected as early as in 1972, it would be difficult to believe that the tenants would not take this plea in the earlier suits and would go on voluntarily paying full rents without protest up to June, 1977 and would also suffer a decree for full rents for the two months of July and August, 1977 in the earlier Suit No. 27 of 1977. According to D.W.2 herself, they were in possession of 5 rooms for such a long period as from 1965 to 1972 and it is, therefore, difficult to believe that in a place like Gangtok, the defendants could have no witness to depose that they were in possession of 5 rooms and the courtyard for such a long period and were thereafter dispossessed from or, at least, were not in possession of, one of those rooms and the courtyard. If the partial eviction or dispossession took place sometime in 1972, as would appear from the deposition of D.W.2, it is difficult to understand as to how the tenants, whose relation with the landlords was not, as apparent from the record, at all cordial, would go on paying full rents for all these five years up to June, 1977 without raising this plea in any of the two suits for ejectment filed against them in the meantime before the present suit. I am, therefore, not in a position to find on the evidence on record that there was any partial dispossession or eviction, as alleged, which could entitle the tenant to suspend the payment of rent or a part thereof. It may be noted that even if there was a case of partial suspension of payment of rent, the rents would have been still in arrears for much more than four months warranting a decree of ejectment under Section 4 of the Gangtok Rent Control and Eviction Act, 1956, as admittedly no amount was paid as rent during all these periods since September, 1977. 9. Mr. 9. Mr. Sharma has lastly urged that the entire cause of action being grounded on breach of the contract of the tenancy to pay rents, and such a breach being capable of being remedied, the tenants were entitled to relief against forfeiture under Sec.114-A of the Transfer of Property Act and, therefore, this suit was to fail as the landlords have not, in accordance with that S.114-A, served on the tenants any notice in writing under that section specifying the particular breach complained of and requiring the tenants to remedy the breach. It is true that Section 114-A, Transfer of Property Act, provides that no suit for ejectment on the ground of forfeiture of lease shall lie unless and until- (a) the lessor has served on the lessee a notice in writing specifying the particular breach complained of, and (b) requiring the lessee to remedy the breach, if it is capable of remedy, and (c) the lessee fails to remedy the breach within a reasonable time. But this Section 114-A begins with the words "where a leases of immovable property is determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter" and, therefore, the section can apply, as would be obvious when read with the provisions of Section 114(g)(1), only when there is an express condition governing the lease and the condition provides that on breach thereof a lessor may re-enter. Ex facie, therefore, this section cannot apply to a case governed by a Statute relating to Rent Control and Eviction of Premises Tenants, which, while conferring on the tenants protection against eviction, also confers rights on the landlords to evict the tenants if any of the grounds provided in the Statute, like, default to pay rent and the like, is satisfied. When any such ground is made out or established, it is then not a case of forfeiture of the lease within the meaning of Section 111(g) and Sec. 114-A on the ground of breach of any express condition of the lease, but is only a case of forfeiture of the protection conferred on a tenant by the Statute against eviction. When any such ground is made out or established, it is then not a case of forfeiture of the lease within the meaning of Section 111(g) and Sec. 114-A on the ground of breach of any express condition of the lease, but is only a case of forfeiture of the protection conferred on a tenant by the Statute against eviction. As pointed out by the Supreme Court in Mangilal v. Sugan Chand, AIR 1965 SC 101 at p. 106, a statutory provision like the one in Section 4 of the Gangtok Rent Control and Eviction Act, 1956, providing the grounds on which only a premises tenant can be evicted, "does not convert a periodic tenancy into one of fixed or indefinite duration,nor insert therein a clause of re-entryon the ground of non-payment of rent" (emphasis added), and, therefore, the provision of Section 114-A providing for relief against forfeiture, cannot apply to premises-tenancies governed by such Statutes. 10. All the grounds urged by Mr. Sharma, therefore, fail and the appeal must fail accordingly. The appeal is, therefore, dismissed resulting in confirmation of the judgment and the decree under appeal passed by the learned District Judge, subject to this modification that the tenants are given time to vacate the suit premises until the expiry of the month of September, 1983, failing which they would be liable to be evicted in execution of the decree under appeal. No order as to costs.