( 1 ) THIS is a tenants second appeal against a decree for ejectment. This is one of the many cases coming to this Court from time to time in which the shortcomings and anomalies of the U. P. Control of Rent and Eviction Act are revealed. The facts which have led to the appeal are these: the appellant Rain Krishna Prasad is the tenant of a shop in Ghazipur of which the landlord is the respondent Mohd. Yahia. On 7-5-1953 the landlord sent him by registered post a notice written on a post-card, which, according to him, was a notice for demand for arrears of rent under Section 3 (1) (a) of the U. P. Control of Rent and Eviction Act. No rent was paid within one month of the receipt of this notice, but on 24-9-1953 the tenant remitted a sum of Rs. 225 by money order which was refused by the landlord. On 11-11-1953 the landlord filed his suit for ejectment. The defendant denied that he had committed any default in payment of rent, he alleged that it was the other way about and that the landlord had several times refused the rent which was tendered by him. He also pleaded that the landlords notice of demand was not according to law. The trial Court held that the appellant was not guilty of wilful default. (It may be mentioned that in 1953 the tenant could be ejected without the permission of the District Magistrate only for wilful default.) The learned Munsif believed the evidence of the appellant that he had tendered the rent which was refused by the landlord. He, therefore, dismissed the suit for ejectment but decreed the amount of arrears of rent due from the appellant.

( 2 ) IN appeal the learned Judge took the view that any tender of payment by the appellant before the receipt of notice was irrelevant and that by his non-payment of arrears of rent after the service of notice, the tenant became guilty of wilful default within the meaning of Section 3 (1) (a ). He observed that the tenant had given no explanation for his failure to pay the rent. He allowed the appeal and decreed the suit for ejectment with cost. Aggrieved by this decision the defendant has come to this Court in Second Appeal.

( 3 ) TWO points have been urged before me. First, it was argued that the learned Judge had completely ignored the evidence of the appellant that he had been regularly tendering the rent to tha landlord who had refused it on each occasion. Instead of discussing the merits of the appellants evidence the learned Judge incorrectly observed that the defendant had produced no evidence to explain the non-payment of rent. This, according to counsel, is a misstatement apparent on the race of the record for the appellant had deposed that he could not pay rent because the landlord would not accept it. Secondly the learned Judge had refused to consider the appellants explanation because he took the view that any tender of payment by the tenant before receiving the notice of demand was irrelevant and that the real question was whether, after the receipt of notice the tenant had paid the rent within one month. His refusal to consider material evidence vitiates his finding of fact on the question of wilful default. Learned counsel urged that this Court should in the exercise of its powers under Order XLI Rule 24 C P. C. re-examine the evidence and decide this question itself.

( 4 ) IN my opinion the learned Civil Judge was wrong in his view that any tender of payment by a tenant prior to the service of notice of demand under Section 3 (1) (a) is irrelevant to the question whether he had committed wilful default. The appellant had explained in his defence that he had been unable to make payment because the landlord would not accept it whenever it was tendered. If this explanation was true it is obvious that he was never in default and the landlord was deliberately manoeuvring him into a position where he could be accused of being a defaulter. If a landlord without lawful excuse refuses to accent rent tendered by the tenant, he cannot afterw