Civil Appeal No 2601 of 1969
Appeal by Special Leave from the Judgment dated 21 8 1069 of the Allahabad High Court in Second Appeal No 269363
WS Barlingay and RC Kohli for the Appellant
SL Aneja and KL Taneja for the Respondent
The Judgment of the Court was delivered by SARKARIA J
This appeal by special leave is directed against a judgment dated August 21 1969 of the High Court of Allahabad affirming on second appeal the judgment of the Civil Judge Dehra Dun
It arises out of these facts Umrao Singh respondent herein who died during the pendency of proceedings in this Court and is substituted by his legal representatives instituted a suit on September 26 1961 against Ram Deo appellant herein for damages and for eviction from House No 122B Choharpur District Dehra Dun
Umrao Singh was the landlord of the suit premises
Ram Deo was occupying the premises at a monthly rent of Rs 25
On June 13 1960 a sum of Rs 600 was due to the respondent from the appellant as arrears of rent and an agreement was executed between the parties on that date according to which the tenant had to pay Rs 50 every month to the respondent to wit Rs 25 towards liquidation of the compounded arrears of rent and Rs 25 per month towards the current rent falling due
The appellant fell in arrears again
Thereupon the respondent served a notice of demand upon the plaintiff on August 21 1961 requiring him to pay Rs 380 as the arrears of rent Rs 5 being balance due from the period April 10 1960 to May 9 1960 and Rs 370 for the period from May 10 1960 to August 9 1961 within one month from the receipt of the notice
The tenant appellant pleaded that the parties had acted upon the said agreement dated June 12 1960 and on settlement of accounts in April 1961 a sum of Rs 305 was alleged to be due to the respondent
Thereafter the appellant made another payment of Rs 50 to the respondent on June 6 1961
On September 27 1961 appellant tendered to the respondent a sum of Rs 200
The respondent did not 69 accept this tender and instead instituted the suit for damages and eviction of the appellant from the said premises
The tenant further pleaded that the arrears of rent due at the date of notice was Rs 75 only which did not exceed three months  rent that the rest of the amount Rs 75 demanded represented only past arrears covered by the agreement in respect of which the landlord had waived his right of ejectment
The trial court held that from exhibit A 2 it was clear that only three months  rent was in arrears and therefore no ground for eviction had been made out under Section 3a of the UP Temporary Control of Rent and Eviction Act No III of 1947 hereinafter referred to as the Act
With this reasoning the trial court dismissed the respondent s petition for eviction
On appeal the Additional Civil Judge Dehra Dun by his judgment dated May 29 1963 reversed the finding of the Munsif and held that the rent which was in arrears upto June 13 1960 and which was the subject matter of the agreement of that date did not lose its character as arrears of rent merely because there was an agreement to pay the same in instalments
On these premises he allowed the appeal and directed eviction of the tenant
The tenant carried a further appeal to the High Court
The High Court affirmed the finding of the Civil Judge and dismissed the appeal
Hence this appeal by the tenant
Dr Barlingay learned counsel for the appellant has advanced two contentions
First that out of the amount of Rs 150 due to the respondent at the date of the notice Rs 75 was due under the agreement dated June 12 1960 and that amount could not be treated as arrears of rent and tacked on to three months current rent in arrears for the purpose of clause a of Section 31 of the Act
It is argued that the liability to pay the past amount of Rs 75 arises out of the aforesaid agreement which furnished an independent cause of action different from that founded on the rent note or the lease of the premises
Second that Section 114 of the Transfer of Property Act will be applicable to the situation because this is a matter on which the Rent Act is silent
Since the tenant has cleared all the arrears of rent on the first hearing of the suit he could not be evicted in view of the provisions contained in Section 114 of the Transfer of Property Act
In reply Mr Aneja submits that the pre agreement arrears of rent did not lose their original character as arrears of rent merely because the landlord had agreed to allow the tenant to clear them in instal 70 ments
It is emphasised that what was intended to be an accommodation could not be turned into a handicap for the landlord
It is argued that since on the date of the demand notice served upon the appellant the latter was admittedly liable to pay Rs 150 Rs 75 towards the rent of 3 months prior to August 12 1961 and Rs 75 towards the rent of three months preceding the demand notice he was in arrears of rent for a period of more than three months within the meaning of clause a of Section 3 of the Act and as such was liable to be evicted
We will now deal with the first contention canvassed by Dr Barlingay
The material part of Section 3 of the Act reads as follows 31
Subject to any order passed under sub section 3 no suit shall without the permission of the District Magistrate be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grouds a That the tenant is in arears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand
b to g     In order to make out a ground for eviction under clause a of Section 31 the landlord must establish three facts i that the tenant is in arrears of rent ii that such arrears are of rent for more than three months and iii the tenant has failed to pay the same to the landlord within one month of the service upon him of a notice of demand
If any one of these factual ingredients is not established no order of eviction can be passed under this Clause
In the present case there is no dispute that at the date of the notice the tenant owed an amount of Rs 150 to the landlord out of which Rs 75 represented three months  rent preceding the notice
There is also no dispute that the balance of Rs 75 due from the tenant related to the period prior to the agreement dated June 12 1960 and under the agreement the tenant was bound to pay the same in three monthly instalments which he had in breach of the agreement failed to pay
Controversy centres round the question whether this balance of Rs 75 could also be treated as arrears of rent and tacked on to the arrears of rent relating to the three months preceding the notice for the purpose of clause a of Section 31 of the Act
In our opinion the answer to this question must be in the negative
As a result of the aforesaid 71 agreement the pre agreement arrears lost their original character as arrears of rent and assumed the character of a consolidated debt which under the terms of the agreement was payable by the debtor appellant in monthly instalments
The agreement had in respect of the past arrears brought into being a new cause of action and created a liability against the tenant independent and distinct from that founded on the rent note or the lease of the premises
Consequently if the appellant in breach of the agreement defaulted to pay any instalment the remedy of the respondent creditor would be to file a suit for the recovery of the amount due on the basis of the agreement dated June 12 1960
Thus the arrears of three instalments due under the agreement had ceased to be arrears of rent and could not be tacked on to the arrears of three months rent due at the date of the notice for the purposes of clause a of Section 31
The proposition can be tested by taking an example
Supposing the appellant had defaulted to pay four monthly instalments of Rs 25 each in accordance with the aforesaid agreement but had regularly paid the rent as it fell due every month for the post agreement period
Will the respondent in such a situation be entitled to sue for the eviction of the tenant on the ground that he has committed four successive breaches and defaults under the said agreement  The answer is an obvious No 
The respondent s remedy in such a situation will only be to sue for the recovery of the amounts due on the foot of the aforesaid agreement
In the light of the above discussion the conclusion is inescapable that for the purposes of clause a of Section 31 the appellant was in arrears of rent for three months only
In other words he was not in arrears of rent for more than three months within the meaning of clause a and as such was not liable to be evicted under that clause
The High Court and the first appellate court were in error in holding to the contrary
In the view we take it is not necessary to deal with the second contention canvassed by Dr Barlingay
In the result we allow this appeal set aside the decree of the High Court and dismiss the respondent s suit
In the circumstances of the case however we leave the parties to pay and bear their own costs in this Court
PBR Appeal allowed


Summary:
In respect of arrears of rent the respondent landlord and the appellant who was his tenant entered into an agreement on June 13 1960 that the tenant would pay every month Rs 50 representing Rs 25 as arrears of rent and Rs 25 towards the current rent
For sometime the appellant made the payments in accordance with the agreement but thereafter fell in arrears
The respondent served a notice of demand upon the appellant on August 21 1961
Eventually the respondent instituted a suit for damages and eviction of the appellant from the premises
The appellant pleaded that the arrears of rent due at the date of notice were Rs 75 only which did not exceed three months rent and that the balance of the amount demanded represented only past arrears covered by the agreement in respect of which the landlord had waived his right of ejectment
Dismissing the suit the trial court held that only three months rent was in arrears and no ground for eviction had been made out under section 31a of the UP Temporary Control of Rent and Eviction Act 1947
On appeal the Civil Judge was of the view that the rent in arrears on the date of agreement did not lose its character as arrears of rent merely because there was an agreement to pay it in instalments
The High Court affirmed the finding of the Civil Judge
In appeal to this Court it was contended on behalf of the appellant that out of Rs 150 due to the respondent on the date of his notice only Rs 75 was due towards the arrears of rent for three months preceding the notice while the balance of Rs 75 was a distinct liability under the agreement and therefore could not be treated and tacked on as arrears of rent to the rent due for the three months preceding the date of notice for the purpose of section 31 a of the Act
Allowing the appeal and accepting the appellant s contention  HELD 1
The appellant was not in arrears of rent for more than three months within the meaning of section 31a of the Act and therefore was not liable to be evicted under the clause
71 F 2
As a result of the agreement dated June 13 1960 the pre agreement arrears lost their original character of arrears of rent and assumed the character of a consolidated debt which under the terms of the agreement was payable by the debtor appellant in monthly instalments
The agreement 68 brought into being a new cause of action and created a liability against the tenant independent and distinct from that founded on the rent note or the lease of the premises
The arrears of three instalments due under the agreement had ceased to be arrears of rent and could not be tacked on to the rent due for three months preceding the date of notice for the purpose of the section71 A B