Court confirmed that lawful deposit of rent nullifies landlord’s demand notices, protecting tenant rights under U.P. Act III of 1947.

1. This is a defendants - tenants appeal from the judgment and decree of the learned Civil Judge of Saharanpur evicting them from a house and for recovery from them the arrears of rent and damages. Admittedly, the defendants - appellants are the tenants of the plaintiff - respondent in a house situate in the city of Saharanpur on a monthly rental of Rs. 5/-. The defendant did not pay any rent after September, 1965. The landlord sent a notice dated 23-6-1967 served on the tenants on 24-6-1967 demanding the arrears of rent from September, 1965 up - to - date. The tenants sent the rent due by a money order but deducted from it a small sum as money order commission. The landlord refused to accept the money order as the amount tendered was not sufficient to satisfy the arrears of rent due. The landlord then caused another notice dated 21-8-1967 to be served on the tenants which was received by them on 22-8-1967. The said notice stated that they having not complied with the previous notice of demand served in June, 1967 they have become defaulters liable to ejectment, hence the tenancy was terminated and they should vacate the house on the expiry of thirty days of the receipt of the notice. It was also mentioned in the said notice that the arrears of rent due should also be paid.
On 31-8-1967 the tenants sent the entire amount of arrears by money order. It was refused by the landlord on 13-9-1967. The tenants then made an application on 18-9-1967 under S.7 - C of the U. P. Act III of 1947 (hereinafter called the Act) in the court of the Munsif and deposited the amount of arrears of rent up - to - date on 18-9-1967. After due notice to the landlord the learned Munsif by his order dated 10-2-1968 confirmed the deposit under S.7 - C of the Act. But before the said order was passed under S.7 - C, the suit giving rise to this appeal was instituted by the landlord on 31-1-1968. It was alleged that the defendants having failed to comply with the notice of demand served upon them in June 1967, became defaulters and their tenancy having been terminated by notice under S.106 of the Transfer of Property Act, they were liable to be evicted having refused to vacate the house as required by the notice. The arrears of rent from 1-9-1965 to 22-9-1967 were claimed. Damages for use and occupation were also claimed.

2. The defence in the main was that the tenants were not in default inasmuch as they had complied with the notice of demand by tendering the arrears by money order which was refused and then by depositing the same under S.7C of the Act. It was pleaded that the notice of demand dated 23-6-1967 stood waived by the subsequent notice dated 21-8-1967. The learned Munsif repelled the plea of waiver on the ground that subsequent notice dated 21-8-1967 was not a notice of demand under S.3 (1) (a) of U. P. Act III of 1947 but was merely a notice for terminating the tenancy under S.106 of T. P. Act and the earlier notice of demand dated 23-6-1967 which was a notice of demand of arrears having remained uncomplied, the defendants became defaulters and any deposit made by them under S.7C of the Act more than one month after the receipt of the said notice by the defendants would not enure
to their benefit. The suit was decreed for eviction, arrears of rent and damages.

3. On appeal the learned Civil Judge confirmed the view taken by the learned Munsif and dismissed the appeal.

4. The learned counsel for the defendants - appellants raised the following contentions in support of the appeal : -
(1) That the notice of demand dated 23-6-1967 stood waived