ORDER :- The defendant-applicant is a tenant of the plaintiff opposite party in bungalow No.15, Clive Road, Allahabad, on a rent of Rs.50/-per month and a conservancy charge of -/12/-per month. The plaintiff brought a suit against him for the recovery of Rs.477-1-9 being the arrears of rent for the period commencing from the 1st April 1947, and ending with February 20, 1949. The total rent for this period amounted to Rs.1,167/4/- and it was admitted by the plaintiff that the defendant had paid Rs.690/2/3.

2. The defendant contended that the plaintiff was utterly negligent about the repairs of the bungalow and he (the defendant) was compelled to incur an expenditure of Rs.477/1/9 to keep the bungalow in reasonable repairs. He claimed that he was entitled under the law to a credit of this amount towards the rent due from him. On this ground, he pleaded that the suit should be dismissed.

3. Learned Judge of the Small Causes came to the conclusion that the plaintiff was negligent in keeping the house in repairs, but the defendant should not have spent a sum of Rs.477/1/9. In the opinion of the learned Judge, the defendant should have spent an amount of Rs.100/- every year on the repairs. No reasons are given in the judgment as to how he arrived at this figure. Probably he thought that not more than two months rent in a year should be spent by a tenant in repairs. He therefore, gave a credit of Rs.200/- to the defendant end decreed the claim for a sum of Rs.277/1/9.

4. The defendant comes up in revision and contends that no part of the claim should have been decreed. It appears that when the plaintiff did not carry out the repairs at the defendants request he used to have the repairs made. Every time that he did so, he sent the accounts to the plaintiff and after deducting the amount spent in repairs, he sent a cheque for the balance. For example, I may refer to the letter of February 3, 1949, sent by the defendant to the plaintiff. It runs as follows:

"I have to pay you 8 months rent till December 1948, viz., May to December, 48. Having my demand for repairs of roof sent to you on 11th May last, ignored as usual I had to do them. This has saved you a lot of money and me a good deal of danger. The roof of one room was ready to fall down on my head. I have had very necessary repairs done.

After the heavy monsoon, requires whitewashing which has not been done by you, as you have done to the contiguous houses belonging to you. I have to get whitewashing done unless you take up the work forthwith.

The account of room repairs is as follows:

Bamboos and cartage Rs.53-2-3

Badh Rs.5-2-0

Labour charges Rs.66-12-0

_________________

Total Rs.125-0-3

Postage for this Rs.0-7-6

_________________

Rs.125-7-9

_________________

Eight months rent due Rs.400-0-0

Deduct repairing charges Rs.125-7-9

_________________

Balance Rs.274-8-3

For which a cheque is enclosed herewith."

5. Letters like this, were sent by the defendant tenant to the plaintiff landlord whenever he sent a cheque after deducting the cost of repairs. The plaintiff accepted these cheques without any objection and did not at any time inform the defendant that he was accepting them in part payment.

6. It is argued on behalf of the applicant that having regard to the provisions of S.8 of the Contract Act and the decided cases, where a party accepts a payment in these circumstances, it should be deemed that he has accepted it on the condition on which it was offered and it is not open to him to say subsequently that he accepted the payment in part satisfaction of his claim. Section 8 of the Contract Act provides:

"Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal."

The word proposal is defined in clause (a) of Section 2 as follows:

"When one person signifies to another his willingness to do or to abstain from doing anything with a view to obtaining the assent of th

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