JUDGMENT

V.G. Oak, J. - The main point for consideration in this second appeal is whether in a notice issued under Section 3(1) (a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereafter referred to as the Act) a landlord is entitled to include arrears of rent, which can not be recovered through Court.

2. The plaintiff-appellant is the owner of a certain house situate at Ghaziabad, District Meerut. The two defendants-respondents occupied the house as his tenants on a monthly rent of Rs. 7/12/6. Rent remained unpaid from 1-6-1955. Arrears from 1-6-1955 to 30.4.1960 came to Rs. 459/1/6. In June 1960 the plaintiff served upon the defendants a notice under Section 106, Transfer of Property Act. In the same notice the landlord demanded payment of rent from 1-6-1955. On the receipt of the notice, the defendants offered rent for three years. But the landlord refused to accept the money. The tenants sent the money by money order. The money order was also refused by the plaintiff. He filed against the defendants a suit for their ejectment. He claimed arrears of rent for three years. He also claimed pendente lite and future mesne profits at the rate of Rs. 20/- per month. The plaintiff claimed a sum of Rs. 305.62.

3. The defence was that rent for three years had been offered by the tenants, to the landlord on the receipt of the notice. In view of the landlord's refusal to accept the payment, the defendants were not liable to ejectment. This plea was not accepted by the learned Additional Munsif, Ghaziabad. He held that defendants made default in paying rent. The trial court therefore passed in plaintiff's favour a decree for ejectment of the defendants. The court also passed a decree for Rs. 280.12 on account of arrears of rent along with pendente lite and future damages for use and occupation at the rate of Rs. 7/1216. The defendants went up in appeal. The learned Second Civil Judge, Meerut held that, the landlord was not justified in including in the notice issued by him arrears of rent for more than three years. The court held that, in view of that defect in the notice, the defendants were not liable to ejectment. The learned Civil Judge therefore refused the relief for ejectment and mesne profits. The decree in plaintiffs favour was confined to a sum of Rs. 272/3/6 on account of arrears of rent. The plaintiff has come up in second appeal.

4. When this second appeal came up before a learned Single Judge of this Court, he considered that the question whether rent for more than three years can be legitimately claimed in a notice under Section 3(1) (a) of the Act raised some difficulty. He therefore referred the second appeal to a larger Bench.

4-A The plaintiff-appellant was aware that, in a suit for arrears of rent, he could not get a decree for rent for more than three years. He therefore confined the claim in the plaint to arrears of rent for three years. But in the notice issued in June 1960 he claimed the entire rent from 1-6-1955. The question therefore arises whether in a notice under Section 3(1) (a) of the Act the plaintiff can properly demand payment of rent for nearly five years.

5. That point came up for consideration before a Division Bench of this Court in Sohan Lal Kharbanda v. Dr. Sri Ram Sinha, 1957 ALJ 503. It was held in that case that, the words 'any arrears' occurring in.C1. (1) of Section 3 of the Act include even those arrears the recovery of which has become barred under the law of limitation. If a tenant knowingly refuses to pay time barred arrears, he makes a wilful default within the meaning of Section 3.

Similarly in Shafta Ullah v. Mohammad Husain, 1963 AWR 480 it was held by Dhavan, J. that, the expression 'arrears of rent' means that the rent for a certain period which should have been paid when it became due was not paid and the fact that the unpaid rent had become irrecoverable under the law of limitation is not relevant to the question whether the tenant deserves to be deprived of the