1980 PLP 648 (CLC)

2. The dispute between the parties is about house No. 853/W.7-H which is occupied by the respondent as the appellant's tenant. The appellant filed an application for ejectmeut of the respondent on the 26th September, 1969 on the grounds of default in the payment of rent from June, 1969 to September, 1969 at the rate of Rs. 100 per month and requirement of the house for the personal use of the appellant.

3. This application was contested by the respondent on the ground that there was no default. In fact the rent for the month of May had, been paid in advance. There were some negotiations between the parties bout the sale of the house by the appellant to the respondent by virtue of an agreement to sell entered into between them but since the appellant went back upon this agreement and made a demand that the house should be vacated or its rent be enhanced, he refused to receive the rent. He also did not give the receipt for the rent for the months of June and July, 1969. For this reason the rent from June to September, 1969 had to be sent to him by money order. The plea of requirement of the house for personal use was also controverted. The following issues were framed by the learned rent controller (1) Whether the respondent has paid or tendered the rent regularly and is not a defaulter ? O. P. (2) Whether the petitioner requires the disputed premises for his personal use and occupation ? O. P. (3) Relief.

4. Issue No. l was decided by the rent~ controller against the appellant since no evidence was led on that point. He, however, found that the respondent had defaulted in the payment of the rent, He. therefore, passed an order of her ejectment.

5. The learned District Judge did not believe the version of the respondent that there was a completed agreement to sell and that a sum of Rs. 200 had been paid by the respondent to the appellant as earnest money. Similarly he did not believe that the rent for the months of June and July, 1969 was at all paid or tendered. He found that the rent for the four months had been tendered in the month of October, 1969. Ignoring the rent note Exh. P. 1, he found that there was no contract regarding the date of payment of rent and consequently the rent for the months of August 2nd September 1969 could be paid within sixty days from the date when it became due and since the rent had been tendered by money order before the expiry of that period, there was no default in the payment of rent for the months of August and September, 1969. He found that the appellant was a defaulter in the payment of rent for the months of June and July, 1969, but then he held that it appeared that this rent was not paid on account of negotiations for the sale of the house between the appellant and the respondent's son. The respondent was, therefore, held to be entitled to indulgence. He, therefore, exercised the discretion under section 13 against the appellant and in favour of the respondent. 6. 1 have already stated that the learned District Judge has not taken into consideration the rent note Exh. P. I in order to determine the question of default in the payment of rent for the months of August and September, 1969. According to this rent note, which was executed on the 9th September, 1567, the rent of every month was payable in advance. That this rent was payable in advance, is further corroborated by the written statement of the respondent herself that she had paid the rent for the month of May, 1969 in advance. It is, therefore, a case where there was a contract for the payment of advance rent. The rent for the month of August, and September, 1967, therefore, became due on the first of August and the first of September, 1969 and after the expiry of 15 days period in each case, the respondent became a defaulter in the payment of rent for both the month of August and September, 1969. The tender having been mad-- on the 171,11 October, 1969, it was a clear case of default in the payment of rent for the period from June, 1969 to September, 1969. The basis for exercise of the discretion in favour of the respondent is, therefore, gone.

7. The learned District Judge has also ignored the evidence of the appellant when he appeared as P. W. 1 in regard to the refusal of' the respondent to pay the rent to him. In cross-examination he stated that when the rent was not paid for one and a half months, he approached the respondent, but, since there were some negotiations going on with the son of the respondent for the sale of the property and the respondent had also got the house repaired, she said that she would not pay the rent.

8. If this statement is believed to be correct, no case can be made out for the exercise of discretion since it would be a clear case of refusal on the part of the respondent to pay the rent in tine, in spite of demand. The learned District Judge did not consider this point also and gave no finding whether this assertion of the appellant could be believed or not. It is for this reason that I have to give my own finding of fact on this question.

9. There is no reason, why the appellant should not be believed in this respect. He appears to be a truthful man. There is no documentary evidence that there were any negotiations for sale or purchase of the property between him and the respondent or her son. Even then he made a clean breast of it and admitted that there were some negotiations. Similarly the reliance of the respondent in support of these negotiations was upon the site plan Exh. R. 1, which is said to have been prepared for the sale of this property. This site plan was proved by the witnesses of the appellant. It does not bear any signatures of the appellant and yet in his examination the appellant admitted this document to have been executed for the purpose of selling the property but he stated that this was executed for selling it ,in favour of his sister. Except that the appellant was a ,truthful witness, there was no reason why he should have admitted the document Exh. R. 1 or the said negotiations for sale between hint and the son of the respondent.

10. I am, therefore, of the view that P. W. 1 is a truthful man and his statement that the respondent had refused to pay the rent to him in spite of demand for the reasons advanced therein, is correct. A case of clear default is made out. I, therefore, allow this appeal with costs, set aside the order of the learned District Judge and restore the order of the rent controller. The respondent shall vacate the house by the 15th of July 1979. K. M. A. Appeal allowed.