JUDGMENT

Rajeshwari Prasad, J. - This is a defendant's appeal. Plaintiff filed the suit against the defendants seeking their eviction from the premises in suit and also seeking a decree for recovery of arrears of rent and mesne profits. A claim for money on account of damage alleged to have been done by the defendants to the premises, was also put forward by the plaintiff. The basis on which principally speaking the suit for ejectment was filed was that the defendants were defaulters and had not paid the arrears of rent within a month in spite of service of notice of demand on them.

2. The suit was contested by the defendants mainly on the ground that the monthly rent of the house in suit was only Rs. 6/- and not Rs. 9/- as demanded by the plaintiff through the notice relied upon by the plaintiff. On receipt of notice within time allowed by statute, the defendants remitted the arrears calculated at the rate of Rs. 6/- per month, consequently, the defendants could not be deemed to be defaulters within the meaning of Sec. 3 of the Control of Rent and Eviction Act.

3. It appears that the agreed rate of rent in this case used to be Rs. 6/-per month. It is also not disputed that the defendants were tenants from much before 1-10-1946. It further appears that the plaintiff attempted to enhance the rent by means of a notice. The plaintiff professed to enhance the rent from Rs. 6/- to Rs. 8/- by means of that notice from a particular date. The plaintiff consequently relying upon that enhancement as a valid enhancement of rent had claimed a decree at the rate of Rs. 6/- per month for two months prior to the date of enhancement of rent and for the rest of the months at the rate of Rs. 9/- per month. The defendants contention was that the notice seeking to enhance the rent from Rs. 6/- to Rs. 9/- was invalid and the rent payable by the defendants, therefore, continued to be Rs. 6/-which was the agreed rate. he defendants, therefore, were not defaulters and they were not liable to be evicted.

4. The Munsif came to the conclusion that the enhancement could not be made beyond Rs. 7.50 P per month according to the provisions of the Act. The premises in suit did not lie within the limits of Municipality, and therefore, making calculation as prescribed by the Act, the Munsif came to the conclusion that the landlord could enhance the rent from Rs. 6/- to Rs. 7-50P. per month only and not to Rs. 9/-. This being, so, the notice of demand was found to be illegal and the Munsif refused to pass a decree for the eviction of the defendants. No decree for any amount on account of damage to the premises was passed by the learned Munsif. A decree for arrears of rent at the rate off Rs. 6/- for two months, and at the rate of Rs. 7-50 P for the rest of the period was passed by the learned Munsif. The plaintiff went in appeal before the lower appellate court. The lower appellate court agreed with the trial court that the enhancement in rent could not exceed Rs. 7.50 P per month on the facts of the present case. The lower appellate court, however, took the view that although the notice relied upon by the plaintiff by which it was sought to enhance the rent to Rs. 9/- was invalid, the notice could be read to be a valid notice of enhancement upto the extent of Rs. 7.50 per month. This being so, it was the duty of the defendants to send the arrears of rent calculated at the rate of Rs. 7.50 per month from the date from which the notice purported to enhance the rate off rent. The lower appellate court further observed that in case the defendants challenged the legal consequences of the notice, it was necessary for them to file a suit under Sec. 5, clause 4 of the Act.

5. I am afraid, it is not possible for me to agree to the view taken by the lower appellate court. The first rule of law that is laid down by Sec. 5 of the Act is that the rent payable by the tenant to the landlord in a case where this Act is applicable, shall be such as may be agreed upon between th