Judgement

MITTER. J. :- This is an appeal by special leave from a judgment of the High Court of Gujarat passed in a Civil Revision Application arising out of a suit filed by the plaintiff-respondent against the defendant-appellant to recover possession of certain premises situate in Surat.

2. The facts are as follows. The appellant became a tenant of the respondent under a rent note executed on February 27, 1947 whereby rent was fixed at Rs. 40 per month and the tenancy was to be for period of one year from 22nd February, 1947. After the expiry of the said period, the appellant continued as a monthly tenant on the same terms and conditions as were to be found in the rent note. He fell into arrears of payment of rent and the respondent sued him for eviction some time in 195l. The suit was eventually compromised by a petition put in court bearing date September 16, l952. Under the terms of the compromise, the defendant continued as a tenant from September l, 1952 on the terms and conditions of the rent note dated February 27, 1947 : the original conditions in respect of rent also continued excepting that the rate was lowered from Rs. 40 .....................to quote the words of the compromise . .to "standard rent of Rs. 27" and "in the matter of taxes and interest also the defendant was to act in accordance with the conditions of the aforesaid rent note." Paragraph 2 of the compromise petition contained an account of payments made by the defendant the final result thereof being that it was agreed between the parties that the defendant had paid Rs. 104-5-3 "which amount was to be reimbursed by the plaintiff to the defendant when accounting the future payment of rent." It should be noted here that according to the rent note of 1947 the tenant had agreed to pay the monthly rent of Rs. 40 together with interest at Rs. 0-12-0 per cent per annum in respect of any balance due for rent. Even after the compromise the defendant fell in arrears again. The only payments made thereafter up to the institution of the second suit out of which the present proceedings have arisen were a sum of Rs. 250 on July 19, 1954 and Rs. 200 on March 17, 1955. The defendant did not make any payment to the plaintiff in respect of the permitted increases under the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947 from the 1st of April 1954; neither did he pay the taxes agreed upon. The plaintiff gave a notice to the defendant on April 18, 1955 demanding the arrears of rent and permitted increases in terms of the said Act and also terminating the tenancy of the defendant with effect from May 31, 1955 in terms of Section 106 of the Transfer of Property Act. The notice was received by the defendant on April 21, 1955. No reply was sent thereto nor was any payment made to the plaintiff. The suit for ejectment was filed on March 15, 1956 the ground thereof as laid in the plaint being that the defendant was in arrears of payment of rent and permitted increases and as such not entitled to the protection of the Act. In paragraph 6 of the plaint the dues under various heads were specified showing the arrears of rent, increases permitted the on, interest in terms of the rent note and taxes for three years. It was pleaded by the defendant in the written statement that rent at Rs. 27 had been fixed by the court without going into the merits of the case and that standard rent or reasonable rent of the property in suit had to be fixed first and a preliminary issue in that respect should be framed. The defendant did not admit the claim to the arrears as laid in paragraph 6 of the plaint.

3. He also pleaded that the notice of ejectment was not a valid one as the tenancy was to be reckoned in terms of the Gujarati calendar and not the Gregorian calendar.

4. The date fixed for settlement of issues was September 3, 1956 which can be taken to be the date of the first hearing of the suit for the purposes of the Act. On that day the defendant deposited in court a sum of Rs.