Case: Mangal Sen Vs. Kanchhid Mal

2. The respondent is the owner of a shop building in Jahangirabad town which he had let out to the appellant on a month to month tenancy basis. A suit for ejectment was filed by the respondent in the Court of Small Causes (Civil Judge), Bulandshahr, praying for eviction of the appellant from the shop under Section 2() (2) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act) on the ground that the tenant was in arrears of rent for not less than four months commencing from April 9, 1972 and had failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand (October 19, 1972). It was alleged in the plaint that the agreed rent of the shop was Rs. 100/per month and that the tenant had kept the rent in arrears from April 9, 1972 onwards despite notice having been served on him on October 19, 1972 demanding payment of arrears of rent and determining the tenancy.3. The appellant (defendant) pleaded in defence that the rent was only Rs. 90/per month, that he had not committed any default in payment of the same and hence the suit f or ejectment was not maintainable. According to the defendant, after service of the notice of demand for payment of arrears of rent, the respondent had approached him with a request to stand surety for him for the payment of arrears ofdue by h im for the realisation of which the Amin had come with a warrant for the arrest of the respondent and since the appellant had acceded, to the said request and stood surety for the respondent there could be no further question of any arrears of rent being outstanding as due by him to the respondent.The trial court held that the rent of the shop was Rs. 90/per month, that it had been kept in arrears by the tenant from April 9, 1972 onwards and a default had been committed by the tenant in payment of arrears of rent of more than four months after the notice of demand. Notwithstanding the aforesaid finding that there had been such default committed by the tenant, the trial court took the view that the conduct o f thein inducing the defendant to stand surety for him for the payment ofarrears due by him constituted a waiver of the demand made in the notice for surrender of possession on the ground of arrears of rent made. On this reasoning, the trial court denied the plaintiff the relief of ejectment and decreed the suit only for recovery of arrears of rent.4. Thecarried the matter in revision before District Court, Bulandshahr. The learned District Judge found that the plea of waiver had not been put forward by the defendant either in the written statement or in any other manner at any stage before the trial court and that the issue covering the question of waiver had been framed by the trial court of its own accord. The District Judge further found on the merits that no conduct amounting to waiver on the part of the plaintiff had been established by the evidence because even according to the case of the defendant himsel f, excepting for standing surety for the plaintiff, he had not actually made any payment on behalf of the plaintiff towards thedues since the plaintiff had specifically refused to make any endorsement in the Rent Deed adjusting the propo sed payment ofagainst the arrears of rent due by the defendant. Inasmuch as the trial court had found that the default in payment of the arrears of rent for a period exceeding four months had been committed by the defendant and it had denied a relief of ejectment only on the reasoning that there had been a waiver of the demand for eviction on the part of the plaintiff, the District Judge allowed the Revision Petition and granted the plaintiff a decree for ejectment under Section 20 (2) (a) of the Act.Thereafter, the appellant defendant took up the matter in further revision before the High Court under Section 115,Code of Civil Procedure. The High Court by its judgment dated November 28, 1979 confirmed the findings of the District Judge and dismissed the Revision Petition.5. The defendant thereupon approached this Court for the grant of special leave to appeal against the said judgment of the High Court.

Reasoning:
After hearing counsel on both sides, we are satisfied that the District Court was perfectly right in its view that there had not been any conduct on the part of the plaintiff which would constitute a waiver by him of the demand for surrender of possession made as per the notice dated October 9, 1972 which was served on the tenant on October 19, 1972. As rightly observed by the District Court, the defendant had not put forwa rd any plea of waiver in the written statement filed by him before the trial court and the absence of any specific pleading in that behalf, the trial court was not really called upon to go into the question of waiver. Further, it being the specific case put forward by the defendant himself that no amount whatever had been paid by the appellant-defendant to the sales-tax authorities on behalf of the plaintiff and that the respondent-plaintiff was not agreeable to make any endorsement on the Rent Deed adjusting the proposed payment of sales-tax against the arrears of rent, we fail to see how it can be said that there had been any waiver by the plaintiff-respondent of the demand for surrender of possession already made by him as per the notice dated October 9, 1972. The finding rendered b)! the trial court that the effect of the notice had been effaced by the subsequent conduct on the part of the landlord which amounted to a waiver was manifestly illegal and perverse and it was rightly setdeposit in question is said to have been made by the appellant on January 25, 1974. It was only subsequent thereto that the appellant filed his written statement in the suit. It is noteworthy that one of the principal contentions raised by the appellant-defendant in the written statement was that since he had stood surety for the landlord for arrears of sales-tax, there was no default by him in the payment of rent. In the face of the said plea taken in the written statement, disputing the existence of any arrears of rent and denying that there had been a default, it is clear that the deposit, even it was made on the date of the first hearing, was not an unconditional tender of the amount for payment to the landlord. Further, there is also nothing on record to show that what was deposited was the correct amount calculated in accordance with the provisions of Section 20 (4).n these circumstances, we hold that the appellant has failed to establish that he has complied with the conditions specified in sub-section (4) of Section 20 and hence he is not entitled to be relieved against his liability for eviction on the ground set out in clause (a) of sub-section (2) of the saidwould appear that, at the time of the preliminary hearing of the Special Leave Petition, the appellant realised that the Revision Petition filed by him before the High Court was not maintainable in law. Hence, this position was conceded by the appellant before a Bench which heard the Special Leave Petition and a request was made by the appellant for the grant of special leave to him to appeal against the judgment of the District Court. That request was granted by order of this Court dated April 23, 1980. This Civil Appeal is thus directed against the judgment of the District Judge.