JUDGMENT

S.S. Dhavan, J. - This is a tenant's second appeal from the concurrent decrees of the courts below ordering their ejectment (from a one-room tenement. The appellants Gussain Ram and Harish Lal Raj are the tenants of the room which is a part of a building situate in Nainital, of which the plaintiff-respondent Mohammad Siddiqui is the owner and landlord. The plaintiff alleged that the defendants were the tenants of the previous owner who sold the building to him, and the defendants continued to be his tenants on the same terms as before. He alleged that the tenancy was from month to month and the rent was Rs. 2/8/- per month. The plaintiff purchased the house in January 1960 and in September he served on the defendants a notice of demand for one year and eight months rent. The plaintiff alleged that as the defendants did not pay the rent within one month, he filed this suit after terminating the tenancy. He made other allegations against the appellants which I have ignored because these were not believed by the courts.

2. The appellants resisted the suit and denied that they had committed any default in payment of rent. They alleged that they had been tenants of the previous owner for the last 30 years and their tenancy was annual, the rent being paid at the rate of Rs. 30/- per year. They alleged that they received the notice of demand in September 1960 and tendered the rent in December when it became due, but it was refused by the landlord.

3. The courts below held that the tenancy was from month to month and that the appellants had not paid the rent within a month of receiving the notice of demand. The defendants have come here in second appeal.

4. I think the courts below overlooked a crucial issue. I have perused the written statement of the appellants. They alleged that their tenancy was annual and the rent was to be paid at the end of each year. These two pleas should have been kept separate, but the courts below thought that they were one and the same plea. They were in error. A tenancy may be from month to month but the rent may be payable at the end of each year. Kumar Das v. Jagdish Chandra, A.I.R. 1952 SC 23, Chinti Kaharin v. Kripa Shankar, AIR 1941 Patna 488, Basant Lal Shah v. Bhagwati Prasad Shah, 1963 ALJ 620.

5. The courts below rightly held that the tenancy could not be from year to year in the absence of a registered lease; but they did not consider whether the rent was payable at the end of the year. If it was, obviously the notice of demand was premature and invalid as a notice of demand under Sec. 3(1) (a) of the U.P. Control of Rent and Eviction Act. The defendants had alleged in their written statement that they paid rent annually to the previous owner and were therefore entitled to have this question decided.

6. The next question is whether I should remand the case for a finding on the question whether the rent was paid monthly or annually, or decide it myself. I do not think that a remand would be in the interest of justice. The entire evidence was read out to me and a remand would result in unnecessary delay in the decision of this dispute. I, therefore, asked learned counsel for both the parties to address their arguments on this question. After hearing them and considering the entire evidence on the record I am of opinion that the rent was payable annually. This was unconsciously admitted by the plaintiff in his evidence when he made the following statement "Inko Bashir Ahmad mere samne kaha tha ki 1959 ka kiraya bhi Mohd. Siddiq ko de dena (Bashir Ahmad told them in my presence to pay rent of 1959 to Mohd. Siddiq). Agreements for payment of rent at the end of the year are quite common in Nainital and there is a good reason for this arrangement. Labourers do not stay in Nainital during the winter months but migrate to warmer places or go home. They cannot pay the rent every month when they are away, and even on their return to Naini Tal in the next season they cannot pay unless they have ear