( 1 ) THIS is a tenants second appeal from the concurrent decisions of the Courts below decreeing the landlords suit for his ejectment. The defendant appellant Basant Lal Sah is the tenant of a shop in Nainital of which Bhagwati Prasad Sah is the landlord and owner. The plaintiff alleged that the defendant occupied the shop under a monthly tenancy. He obtained the permission under section 3 of the U. P. Control of Rent and Eviction Act for the ejectment of the tenant and then served on him a notice terminating his tenancy and requiring him to quit. The notice also contained a demand for payment of arrears of rent. According to the plaintiff, the defendant did not pay the rent within the prescribed period of one month. The defendant resisted the suit and denied that his tenancy was from month to month. He alleged that it was a yearly tenancy in accordance with the prevailing custom in Nainital. He also pleaded that the rent was always paid annually and, therefore, he had committed no default at the time of receiving the notice. He further alleged that after the receipt of notice he remitteed the balance of the rent due but it was refused by the landlord.

( 2 ) IT may be noted that the permission obtained by the plaintiff under Section 3 was quashed by the Commissioner during the pendency of the suit, which however proceeded because the plaintiff claimed that the bar of Section 3 had been removed because of the default in payment of rent.

( 3 ) THE trial Court held that the tenancy was monthly, and that the defendant had made default in the payment of rent. Accordingly it decreed the suit. On appeal the learned Judge confirmed both these findings. The defendant had come to this Court in second appeal.

( 4 ) I have heard Mr. L. M. Pant for the appellant and Mr. K. C. Agarwal for the respondent, and have perused the judgments of the courts below and the entire evidence on the record. I am of the view that the decision of the lower Courts is erroneous. It is common ground that the plaintiff sent a notice of demand sometime in September 1956 claiming the arrears of vent due, and the defendant did not make any remittance within the prescribed period of one month. The question, however, is whether this omission made him a defaulter as contemplated by Clause (a) of section 3 of the Control of Rent and Eviction Act. The most important question before the courts below was whether the rent of the shop was to be paid every month or annually. No issue was framed on this point, though the Courts decided the other issue namely, whether the tenancy was monthly or annual. Their concurrent finding is that the tenancy was initially for one year but the defendant continued in possession with the permission of the landlord, and as there was no registered lease the tenancy after the first year could only be from month to month. But both courts overlooked that it is possible even in a monthly tenancy to provide for annual payment of rent. The defendant had taken a specific plea that he had paid vent every year in December and no rent was due on the date when the plaintiff sent his notice of demand. This question was not decided By the courts presumably under the impression that in a monthly tenancy the rent must be paid every month. That, however, is not so. It is possible to create a monthly tenancy but provide for payment of rent by the year. Ram Kumar Das v. Jagdish Chandra, AIR 1952 SC 23 and Chinti Kaharin v. Kripashankar, AIR 1941 Pat 488. Even if the defendant failed to prove that the tenancy was from year to year, the courts should have decided whether the rent was to be paid every month or at the end of the year. The question before me is whether 1. should remand the case for a finding on this issue or decide it myself. I do not think that a remand would be in the interests of justice as it would lead to further delay which is not in the interests of either party. Moreover, as the entire evidence had been read out before me, I req