The main legal point established in the judgment is that a notice of demand, even if it raises demand at a higher rate than agreed, shall be valid. The tenant, on receipt of such notice, is at liberty to tender arrears of rent at the admitted rate to the landlord. The tenant is not entitled to straight away deposit the rent under Section 30(1) of the Act after receipt of the notice. The burden of proof regarding the existence of arrears of rent lies upon the landlord initially, and then shifts to the tenant to prove the payment of rent.

(1) Learned Single Judge after hearing the parties in the above noted 1st two petitions, found that there was divergence of opinion between the two Division Bench decisions of this Court i.e. Lala Manohar Lal vs. Vimal Kumar, 1955 AWR 395 (DB) and Wasim Khan vs. Shahid Ali, 1971 (All) RCJ 867 (DB), therefore, after formulating three questions referred said petitions for decision by a Full Bench by order dated 3.1.1985, the operative portion of which is quoted below:

"Thus, the following questions would re quire consideration by larger Bench:-

1. Whether a notice of demand can be held to be invalid or mala fide on the ground that the rent had been demanded at a higher rate than the correct rate and if so whether the tenant can be absolved form the duty of complying with such a notice?

2. In case where the landlord had earlier been refusing to accept rent at the correct rate and had been claiming rent at higher rate and the tenant had as a consequence of landlords earlier refusal in the past, deposited the rent in Court under Section 30 and thereafter, landlord serves a formal notice of demand again at a higher rate, whether the tenant without tendering rent at the correct rate to the landlord has a right straight-away to deposit the same under Section 30(1)?

On which party, does the burden of proof lie in regard to the existence of arrears of rent? As these are the only questions involved in the decision of these two writ petition, it appears to me expedient to refer the whole cases to a Full Bench. Let the record be laid before Hon'ble Chief Justice for constitution of a Full Bench for the decision of these cases."

(2) As a consequence of the aforesaid order, Hon'ble the Chief Justice constituted the Full Bench for the aforesaid purpose. In the other two petitions only above noted three questions for answers have been referred as in these petitions, besides said questions, other questions were also involved.

(3) Before dealing with aforesaid three questions we consider it necessary to notice relevant facts giving rise to the following petitions as the said petitions are also required to be decided by this Bench on merit. Writ Petition No. 2575 (RC) of 1979.

(4) This is tenants' petition arising out of suit for ejectment and recovery of rent filed by Respondent No. 3. The Respondent No. 3 firstly filed application under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, for short the Act. Said application was dismissed on 22.7.1976 by the Prescribed Authority. Against the said order, appeal was filed before the appellate authority. While appeal was pending, Respondent No. 3 issued notice of demand and termination of tenancy to the petitioner on 13.10.1976 demanding payment of rent 40 per month from May, 1972 to September 1976, amounting to Rs. 2120 and vacation of the building in dispute. Said notice was delivered to the petitioner on 13.10.1976. Petitioner gave reply of the said notice claiming that rate of rent was Rs. 15 per month and not Rs. 40 per month and contending that as the said respondent refused to accept the rent, the rent was deposited from 1.5.1972 to 31.6.1976 under Section 30 of the Act, which could be withdrawn by him. Thereafter, Respondent No. 3 filed suit in the Court of Judge Small Causes for ejectment and recovery of rent on the ground of default and substantial damage to the building. The said suit was contested by the petitioner, pleading that the rate of rent was Rs. 15 per month and not Rs. 40 as claimed by the plaintiff-respondent, that the amount of rent and refusal made by the plaintiff, was deposited in the Munsif Court under Section 30 of the Act and that no damage at all was caused to the building by him. The suit was, therefore, liable to be dismissed.

(5) The trial Court on the basis of the pleadings of the parties, framed four is sues. While dealing with issue No. 1, it was held that rate of rent was Rs. 15 per month and not Rs. 40. On issue