A notice to quit under Section 106 of the Transfer of Property Act must be a notice of not less than 30 days in order to bring about a termination of a month to month tenancy.

( 1 ) THIS is defendants second appeal in a suit for ejectment from, and rent and damages in respect of a shop.

( 2 ) THE appellant became a tenant of the shop in the year 1962 under a Sarkhat dated 3rd March, 1962, on payment of Rs. 32/- p. m. as rent. By a notice dated 12th July, 1966 rent for the period of 18 months from 3rd January; 1965 to 2nd July, 1966 was demanded from the appellant and his tenancy was also purported to be terminated by the same notice (Ext. 1) with effect from 12th august, 1966. A reply dated 20th July, 1966 was sent by the defendant and the rent demanded was also remitted in full by money-order on 27th July, 1966. But the plaintiff refused to receive the same on 5th August, 1966, whereupon it is said to have been deposited in Court under section 7-C of the U. P. (Temporary) Control of Rent and Eviction Act, III of 1947, on the 9th august, 1966, vide Ex. A-3.

( 3 ) THE notice dated 12th July, 1966, expressly stated that if the rent demanded was not paid within "30 days" of its receipt the defendant-appellant would be liable to be evicted under section 3 (a) of the u. P. Rent Control and Eviction Act. It further stated that the plaintiff-respondent, since deceased and now represented by his legal representatives, did not want to keep the defendant-appellant as tenant in the house, hence his tenancy was terminated from 12th August, 1966 and he was given notice to vacate the house and deliver possession of the house and pay the rent till then to the plaintiff, by that date (12th August 1966) or within such time as he, the defendant thought was the legal limitation for vacating the house.

( 4 ) IN the plaint also there is an express mention of the said notice as a notice under Section 3 of the u. P. Rent Control Act and Section 106 of the T. P. Act, in paragraph 3 thereof; and again in paragraph 7 thereof wherein the dates of the accrual of cause of action are given. It can thus be said that the plaintiff deemed the giving of notice under Section 3 of the U. P. Act number III of 1947 as an integral, essential part of the cause of action, as pleaded in the plaint.

( 5 ) THE defence set up by the defendant-appellant in his written statement filed on 9th November 1966 was that the rate of rent agreed upon was Rs. 25/-p. m. although the plaintiff had by coercion obtained the rent note for Rs. 32/- p. m. , and other such pleas were also raised, but the material pleas were that the defendant had remitted the rent by money-order and on the plaintiffs refusal to receive it, he had deposited it in Court under Section 7-C; that he was not a defaulter and the suit was barred by Section 3 of the control of Rent and Eviction Act; and that in any case the notice under Section 106 of the t. P. Act was against law and the plaintiff could not evict the defendant from the shop on its basis.

( 6 ) AFTER the defendant had filed his written statement the plaintiff moved an application dated 18th January 1967 for amendment of the plaint stating therein that he was ignorant of court proceedings and had got the notice under Section 106 of the Transfer of Property Act written at baraut, (the town where the accommodation is situate which did not have any civil courts there but was a Tehsil headquarter) and that because of ignorance (obviously of the person who drafted the notice and of the plaintiff) Section 3 of the rent Control Act was mentioned in the notice, which was wrong; and that in fact the shop in suit along with another shop and the plaintiffs house had been constructed in the year 1952 and the rent Control Act did not apply to them; and that therefore he may be permitted to amend the plaint by inserting paragraph 3-A in the plaint to the effect that the shop in suit was constructed after 1951, that is in 1952 and the rent Control Act was not applicable to the matter. The application was allowed by the trial courts order dated 10th April, 1967, which reads as under.

"this is a suit for possession and r