Umesh Chandra Malviya and another vs Ram Krishna Purwar

Gopi Nath, J.

This is a plaintiffs'' appeal and arises out of a suit for ejectment and arrears of rent. The dispute relates to a portion of house No. 479, Madan Mohan Malviya Nagar, Allahabad. One Sri Brij Kishore Malviya, father of plaintiff No. 1 and husband of plaintiff No. 2 was the owner of the house. The defendantrespondent is tenant of a portion of that house at a rent of Rs. 15/ per month. Sri Brij Kishore Malviya died leaving behind the plaintiffs as his heirs. At the time of death of Sri Malviya plaintiff No. 1 was a minor. During his minority plaintiff No. 2 looked after the affairs of the family. After attaining majority plaintiff No. 1 filed suit No. 746 of 1963 against the defendantrespondent for his ejectment and recovery of rent for the period December 1, 1962 to August 31, 1963. Ejectment was sought on the ground that the defendant had failed to pay the rent falling due during this period and was accordingly a defaulter under Section 3 of the U.P. Control of Rent and Eviction Act (hereinafter referred to as the Act).

The defence delieverd in that case, was that the rent had been paid to plaintiff No. 2 who had been looking after the affairs of the family and the defendant accordingly was not a defaulter. It was further pleaded that plaintiff No. 1 alone was not entitled to terminate the defendant''s tenancy and maintain the suit. That suit was dismissed, inter alia, on the findings that the plaintiff alone was not competent to terminate the defendant''s tenancy and further that the defendant was not a defaulter.

On appeal the decree was affirmed on the finding that the suit was not maintainable by plaintiff No. 1 alone but no rinding was recorded by the lower appellate court on the question of default.

It appears that after the decision of that suit the defendant again stopped paying rent and fell into arrears. The plaintiffs sent a combined notice dated March 5, 1965 to the defendantrespondent under Section 3 of the Act and under Section 106 of the Transfer of Property Act terminating the defendants'' tenancy and demanding rent for the period December 1, 1962 to February 28, 1965 which amounted to Rs. 405/ and a sum of Rs. 17.16 as Bhumi Bhawan Kar for the period 1962 to 1965 within thirty days of the receipt of the notice, failing which the defendant was required to vacate the premises.

The defendant replied the notice and stated that the rent from December 1, 1962 to August 31, 1963 had already been paid to plaintiff No. 2 and that a suit in respect of the rent for that period had already failed. He tendered a sum of Rs. 270/ by money order to the plaintiffs which according to him was the rent due from September 1, 1963 to February 28, 1965. The remittance was made within thirty days from the date of the receipt of the notice. As regards the Bhumi Bhawan Kar it was stated that the defendant was prepared to pay the same provided it was payable to him. The payment of rent was not accepted by the plaintiffs. According to them defendant was liable to pay the rent for the period December 1, 1962 to August 31, 1963 as well and since the remittance of Rs. 270/ covered the rent only for the subsequent period they were not obliged to accept the same.

The suit giving rise to this appeal was filed on the allegations that the defendant was a defaulter within the meaning of Section 3 (1) (a) of the Act, having not paid the entire rent due from him. He was consequently liable to ejectment. A claim for his ejectment and recovery of Rs. 342926 paisa as arrears of rent and Bhumi Bhawan Kar and cost of notice was accordingly made. The plaintiffs also prayed for pendents lite and future mesne profits at the rate of Rs. 151per month.

The suit was contested on the pleas that the rent for the period February 1, 1962 to August 31, 1963 had already been paid, that a suit for recovery of rent for that period had already failed, that the instant suit in respect of the arrear claimed for that period was barred by res judicata, that the decision in suit No. 746 of 1963 was binding on the plaintiffs that the plaintiffs having refused to accept the rent offered through the money order which was only amount due from the defendant could not treat the defendant as a defaulter, that the notice to quit was invalid and that the suit was not maintainable.

The trial court decreed that suit on the findings that the decision in the earlier suit did not operate as res judicata in the instant suit, that the rent from December 1, 1962 to August 31, 1963 was in arrears against the defendant, that the remittance of Rs. 270/ did not cover the entire rent due, that the defendant was accordingly a defaulter and liable to ejectment. Recovery of Rs. 52926 as arrears of rent, Bhumi Bhawan Kar and costs of notice was also decreed.

On appeal the lower appellate court reversed the decree for ejectment and dismissed the suit for that relief. It also dismissed the claim for rent for the period December 1, 1962 to August 31, 1963. The suit was decreed for recovery of Rs. 28716 for arrears of rent for the period September 1, 1963 to February 28, 1965 and for Bhumi Bhawan Kar.

The lower appellate court held, that the finding in the earlier suit regarding the payment of rent for the period December 1, 1962 to August 31, 1963 did not operate as res judicata, and the question whether the rent for this period had been paid or not had to be decided in the instant suit on the evidence on record. Learned counsel for the respondent has not contended that the finding recorded by the trial court in the earlier suit regarding the payment of rent for the period from December 1, 1962 to August 31, 1963 operates as res judicata in the instant suit. In the appeal filed in the earlier suit the lower appeallate court affirmed the decree of the trial court only on a technical ground that the suit was not maintainable having being filed only by one of the landlords. The question regarding the default in the payment of rent was specifically left open and the finding of the trial court on that question was not confirmed. It is plain that the learned Judge in that case did not decide anything regarding the defendant''s liability for the arrears of rent claimed and it is idle to speculate as to what the finding of the learned Judge in that proceeding would have been. The learned Judge in the instant case seems to have come to a conclusion that the question of default had been finally decided in the earlier proceedings and the question was concluded in favour of the defendant. It would be a contradiction in terms to say that the court below in the earlier suit had finally decided the matter which it expressly left untouched and undecided. The lower appellate court in the instant case took a wrong view of the decree of the lower appellate court in the earlier suit as regards the payment of rent for the period December 1, 1962 to August 31, 1963. The finding of the trial court in the earlier suit lost its value and efficacy after the judgment was taken up in appeal. The appellate court judgment thereafter had to be looked into on the question whether the rent had been paid by the defendant. In District Board, Muzaffarnagar v. The Upper India Sugar Mills Ltd., Khatauli A.I.R. 1957 Alld. 527 it was held that ''once an appeal is filed from the decree of the trial court, and the case is heard on merits by the appellate court, the element of finality disappears and the whole case is reopened before the Court of Appeal. The decree passed by the appellate court in such a case finally supersedes the decree of the original court and wipes it out altogether.'' The appellate order alone becomes operative and effective between the parties. See Collector of Customs, Calcutta v. East India Commercial Co. Ltd. and others A.I.R. 1963 S.C. 1124. The judgment of the learned Munsif in the earlier suit could be looked into only for the purposes of finding out whether that suit had been decreed or dismissed but the finding of the learned Munsif on the question of the payment of rent lost its value after an appeal was preferred against the decree passed. That being the position the question as to whether the defendantrespondent had actually paid rent for the period December 1, 1962 to August 31, 1963 to plaintiff No. 2 had to be determined as a fact in the instant proceedings.

The learned Judge has held that the rent had been paid to plaintiff No. 2. In recording the finding the learned Judge took three factors into consideration. One, the statement of the defendant in the instant suit. Learned Judge observed that ''the defendant in categorical terms in his statement on oath has said that he paid rent up to August 31, 1963 to Smt. Shyama Devi and the learned Munsif has not given any cogent reason in discarding his statement on this point....'' No such statement has been made by the defendant in the instant suit. Learned counsel for the appellant has vehemently challenged the observation made by the learned Judge. The entire statement of the defendant was placed before me and I am constrained to remark that the learned Judge has made the observations without carefully reading the statement of the defendant. Learned counsel for the respondent had also to concede that no such statement was made by the defendant in the instant suit and the learned Judge was in "error in holding that such a statement had been made by the defendant. The learned Judge completely misapprehended the position in this regard. He observed that:

"Once we accept the defendant''s statement that rent upto August 31, 1963 had been paid by him to plaintiff No. 2, the plaintiffs were not entitled to obtain a decree of ejectment against the defendant because after the receipt of notice Ext. 17 the defendant actually had remitted Es. 270/ on account of the outstanding dues of rent in respect of the demised premises for the period of September 1, 1963 to February 28, 1965."

It is apparent that the learned Judge got heavily influenced by the fact that since the defendant had stated in categorical terms that he had paid the rent for the period December 1, 1962 to August 31, 1963 to plaintiff No. 2 he could not be held a defaulter he having sent the balance through money order. There is no warrant for the supposition made. The finding recorded in favour of the defendant is clearly vitiated in law.

Two further circumstances were taken into account by the learned Judge in holding that the rent for the period December 1, 1962 to August 31, 1963 had been paid by the defendant. One was the proceeding in the earlier suit that ended in the dismissal of the plaintiffs'' suit for ejectment. The earlier suit was dismissed only on a technical ground by the appellate court. That dismissal was in conclusive on the question of the payment of rent as the point was left undecided by the lower appellate court. The other circumstance was the nonappearance of plaintiff No. 2 as a witness in the instance case. This fact also to my mind is not very material. The plaintiffs were required to discharge, their burden of proof of pleading that the rent for the entire period December 1, 1962 to February 28, 1965 was in arrears against the defendant. The plaintiff No. 1 in his statement had clearly stated that the rent for the entire period was due. It is true that he did not lefer to any verification having been made from his mother as to whether any rent for the period December 1, 1962 to August 31, 1963 had been paid to her or not. In my opinion it was not necessary to refer to any such verification in the examinationinchief. All that the plaintiff was required to state was whether the rent for the entire period December 1, 1962 to February 28, 1965 was in arrears or not. The entire crossexamination was also directed towards the payment of Rs. 270/ by money order towards rent for the period September 1, 1963 to February 28, 1965. No suggestion was made regarding the payment of the earlier rent to plaintiff No. 2. In his written statement the defendant had pleaded that he had paid the rent for the period December 1, 1962 to August 31, 1963 to plaintiff No. 2. The burden of proof of this pleading was on the defendant. See Kumbhan Lakshmana and others v. Tongivala Venkateswaru and others A.I.R. 1949 P.C. 278. The learned Judge wrongly held that since the plaintiff No. 2 was not produced in evidence the payment of the earlier rent would be assumed to have been made to her. The finding of the learned Judge that the defendant had paid the rent for the period December 1, 1962 to August 31, 1963 to the plaintiff No. 2, in the circumtances cannot be upheld. The finding is not supported by any evidence on record and is further based on irrelevant considerations.

Once it is held that the rent for the period December 1, 1962 to August 31, 1963 was in arrears against the defendant, which he did not pay within one month of the receipt of the notice dated March 5, 1965 he would clearly be a defaulter within the meaning of Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act. He was accordingly liable to ejectment. The trial Court rightly decreed his ejectment on this ground. The lower appellate court erred in setting aside that decree.

The appeal in the result succeeds and is allowed with costs. The decree of the lower appellate court is set aside that of the trial court is restored. The learned counsel for the respondent has prayed for two months'' time to vacate the premises. Time prayed for is allowed.