K.B. Asthana, J.
1. This is a plaintiff's appeal. The plaintiff Smt. Parbati is the owner of certain shop in which Babu Lal, defendant respondent, is a tenant on payment of rent of Rs 17/- per month The undisputed facts are that the defendant respondent, Babu Lal, executed a Kiryanama dated 1-8-48 in favour of one Pragi Lal who was the husband of Smt. Parbati appellant in respect of the shop in suit. The defendant respondent paid rent regularly to Pragi Lal. After the death of Pragi Lal a dispute arose between his widow Smt. Parbati plaintiff appellant and one Lalman who was the real brother of deceased Pragi Lal. Lalman claimed that the shop in suit was joint family property consisting of him and his deceased brother and he had half share in it.
A suit No. 148 of 1956 was filed by Smt. Parbati against Babu Lal and Lalman in which she claimed the whole of the rent of the shop from Babu Lal. Lalman filed another suit No. 679 of 1956 against Babu Lal and Smt. Parbati claiming half of the rent for the shop. For reasons not known from the record Smt. Parbati withdrew her suit No. 148 of 1956. In the suit of Lalman No 679 of 1956 a decree was passed on 18-7-1958 in which it was held that Lalman and Smt Parbati were entitled to receive the rent from Babu Lal in equal proportions
Smt. Parbati filed an appeal from the decree of the learned Munsif in that suit and succeeded. The appellate court by a decree dated 8-2-1960 dismissed Lalman's suit holding that Smt Parbati was the full owner of the shop However, during the pendency of that appeal Smt. Parbati sent a notice dated 22-1-1959 to Babu Lal intimating that rent for thirtyone months from 1st June 1956 to 31sl December 1958 amounting to Rs. 527/- was due and was to be paid but inasmuch as there has been a dispute about it between herself and her brother-in-law Lalman and a decree in suit No 679 of 1959 had been passed entitling her to receive only half of the rent and that decree was under appeal, so for the time-being he (Babu Lal) should pay her half of that amount that is Rs. 263/8/- within one month of the service of the notice.
In the same notice Smt. Parbati further intimated to Babu Lal that she did not want to keep him as a tenant and the tenancy would stand terminated on the expiry of thirty days from the receipt of that notice by which date he should vacate the shop. This notice was served on Babu Lal, defendant respondent, on 24-1-1969. Babu Lal admittedly did not pay anything within one month of the service of this notice He, however, claimed that he had made certain payments earlier and further that he had deposited certain amounts under Section 7-C of the U. P. Control of Rent and Eviction Act and claimed that the notice of demand was complied with. Since according to the plaintiff the notice of demand remained uncomplied and Babu Lal, defendant respondent, defaulted and did not vacate the premises, hence the suit for recovery of arrears of rent, mesne profits and for eviction. This is the suit which has given rise to the present appeal.
2. The defence of Babu Lal WAS that he had complied with the notice of demand; that the notice of demand and terminating the tenancy was not valid and that Smt Parbati alone had no right to maintain the suit for eviction. These were then some of the main pleas in defence I am not concerned in this appeal with other pleas raised in defence
3. The trial court on the finding that Smt. Parbati was the sole owner of the shop and that the notice of demand which was a valid notice not having been complied with and further that the tenancy stood effectively terminated in law held that the plaintiff was entitled to evict Babu Lal, defendant, and to recover amounts of arrears and mesne profits. Accordingly the plaintiff's suit was decreed. On appeal Babu Lal defendant succeeded The lower appellate court held that the notice of demand was complied with and the suit of the plaintiff was barred by Section 3 of the U P. (Temporary) Control of Rent and Eviction Act. Smt Parbati, the plaintiff, now has come up in second appeal.
4. The only material question which arises for determination in this appeal is this, whether the notice dated 22-1-1959 (Ex. 5) on record is a notice of demand for arrears of rent as contemplated by Clause (a) of Sub-section (1) of Section 3 of the U P. (Temporary) Control of Rent and Eviction Act (hereinafter called the Act) In the earlier part of my judgment while narrating the facts T have already summarised the relevant contents of the said notice The submission on behalf of the plain tiff appellant was that the court below erred in holding that the notice of demand was complied with. It was pointed out that a sum of Rs 263/8/ was demanded; even if all the payments made by the defendant respondent were accepted as payment towards the arrears of rent it amounted only to Rs. 238/- and that being less than Rs 263/8/ the notice remained uncomplied.
There is no doubt in my mind that the learned judge of the court below fell into an obvious error in holding that the payment of Rs 238/ complied with the demand made in the notice But that error of the learned Judge, to my mind, does not affect the decree which he has passed for 1 am of the opinion that the notice (Ex. 5) dated 22-1-59 was not a notice of demand as contemplated by Clause (a) of Sub-section (1) of Section 3 of the Act. What is contemplated by the provisions of Clause (a) is that whole of the rent which has been in arrears for more than three months should be demanded by the landlord and a tenant must tender the same within one month of the receipt of the notice It follows. there-fore, that if in a notice the whole of the rent which has been in arrears for more than three months is not demanded it would not he a notice as contemplated by Clause (a).
The learned counsel for the appellant strenuously contended that a notice of demand need not mention the exact figure of the rent in arrears and even if an exaggerated demand was made, it would be a good notice and likewise it would be a good notice if no figure is at all mentioned for it is the duty of the tenant under that clause to tender whatever he thinks is the arrear due and on that basis the learned counsel urged that if a lesser amount is mentioned in the notice by the landlord that would not make any difference for the reason that the tenant knows best what was the rent which had fallen in arrears and he was liable to tender the same within thirty days of the receipt of the notice.
In the alternative the learned counsel for the appellant urged that even if an amount lesser that what actually is in arrears is demanded, it is the duty of the tenant to tender what was demanded in the notice and if he fails to tender the amount demanded he would fail to comply with that notice and would be a defaulter inasmuch as what Clause (a) requires is only a demand of arrears of rent and the payment of the same by the tenant. This latter argument of the learned counsel pre-sup-poses that a notice of demand for a lesser amount than what actually and admittedly was due is a notice as contemplated under Clause (a)
The question is whether different considerations would apply to a notice wherein the landlord himself demands a lesser amount of rent than what actually is due than those applying to a notice where the landlord demands an exaggerated amount or docs not mention any amount at all
Having given due consideration to the arguments made by the learned counsel for the appellant I am of the view that there is a difference between the two kinds of notices, namely, one in which the landlord demands a lesser amount than the amount which admittedly is in arrears, and a notice where he demands an exaggerated amount or does not mention any amount at all A notice of demand is nothing but an intimation calling upon the person who is liable to tender something to tender it. Thus a notice of demand for payment of arrears is an intimation to the tenant to tender the amount of money which represents that arrear Clause (a) contemplates the payment by the tenant of all the amount which is in arrears for more than three months This is clear from the use of the word 'same'' in that clause If the landlord intimates to the tenant that he should not pay all the arrears but only a part of it, that is, a lesser amount, then it is not a demand by the landlord for all the arrears which are due. The tenant is liable to meet the demand. If the landlord himself demands lesser amount the tenant is under no duty to pay the whole of it. If what is demanded by the landlord in a notice of this kind which is an amount less than the actual arrears due and it is paid by the tenant within thirty days of the service of that notice, the tenant would still remain in arrears, for the whole of the arrears has not been wiped out by that payment
It is clear to my mind that in those circumstances it cannot be said that the whole of the arrears due were paid up as admittedly on the basis of the demand made by the landlord only a part of it has been paid Clause (a) contemplates a demand of the kind which would enable the tenant to discharge whole of his liability incurred by him by keeping the rent in arrears. It does not contemplate the discharge of that liability partly. Since it is inherent in a notice that makes a demand of a lesser amount than what actually is due from the tenant and its compliance by the tenant would still keep him in arrears and would not result in the complete discharge of his liability for the payment of arrears, then such a notice if considered to be a good notice under Clause (a) would always leave a tenant in arrears and the landlord can turn back upon him by filing a suit for his ejectment on the ground that a notice of demand for arrears was served on the tenant but he failed to pay the whole amount of arrears due up-to-date within thirty days of the service of that notice Viewed in this light such notices will always be like a trap on the part of the landlord to snare the tenant and I do not think Clause (a) contemplated a notice of demand which though complied by the tenant would vet serve a foundation for the landlord to clear the bar which Section 3 of the Act imposes upon the filing of a suit for eviction of a tenant
It is obvious that in a notice where a larger amount is demanded or no amount is mentioned and the tenant is asked to pay the arrears within thirty days of the service of that notice, there is no trap and no snare and it also furnishes a proof of the intention of the landlord for demanding the whole of the rent which is due and not only a part of it. The two kinds of notices stand on different footing While a notice of the kind where an exaggerated amount is mentioned or no amount is mentioned is a good notice under Clause (a), the notice of the kind where the landlord deliberately demands a smaller amount than what actually is due as arrears, as said above, is not a notice contemplated under Clause (a).
5. It was then urged for the appellant that on the date when the notice was sent, according to the decree of the Court Smt Parbati is entitled only to half of the rent and she could only demand half of it and therefore, the notice was a good notice inasmuch as she demanded the whole of the amount of arrears which was legally payable to her by Babu Lal defendant-respondent. I have great difficulty in accepting this line of argument.
Firstly, It has been found as a fact in the instant suit that Smt. Parbati plaintiff-appellant is the sole owner of the shop and I would not be justified in taking notice of the position as it stood when the notice was sent as that was not the real situation in law but that arose because of the erroneous decree of the lower Court which was set aside by the Court of appeal. Secondly, in the notice (Ex. 6) itself Smt. Parbati had definitely stated that the whole of the amount was due to her but for the time-being she was only asking for the half for the reason that her brother-in-law Lalman had filed a suit and she definitely intimated to defendant that the decree, on the basis of which she had been held to be entitled only to half of the rent of the shop, was under appeal filed by her. It is clear, therefore, that Smt. Parbati never intended to relinquish her right to the other half of the rent in arrears, rather kept it alive and gave notice of it to Babu Lal defendant.
Learned counsel for the appellant then suggested that it is open for a landlord to relinquish a part of the amount due as arrears of rent from the tenant and demand from him the remainder and a notice of demand for the remainder amount after relinquishment of a part would be a good notice. I do not think that for the purposes of decision of this appeal it is necessary for me to decide the question so posed by the learned counsel, for I am of the view that the notice (Ex. 5) does not show any intention on the part of Smt. Parbati as the landlady to relinquish any part of the arrears due from the defendant-respondent; rather on the other hand it shows an intention on her part to reserve her rights for realisation of the other half also from Babu Lal defendant-respondent as a result of the appeal.
6. Next the learned counsel for the appellant contended that in any view, had the appeal in suit No. 679 of 1959 not succeeded and the decree of the trial Court apportioning the rent into equal shares between Smt. Parbati and Lalman, her brother-in-law, had stood confirmed then the notice (Ex 5) would be a valid notice. I have not been able to clearly appreciate the import of this submission of the learned counsel What I understand from the submissions made was that the validity of the notice or the intention of Smt. Parbati expressed in the notice (Ex 5) ought not to be judged on the basis of the uncertainties of the litigation which was going on between her on one side and her brother-in-law, Lalman, on the other What the learned counsel urged was that the notice would always be valid whether the appeal in suit No 679 of 1956 succeeded or failed and the learned counsel emphasised that the basis for holding that the notice (Ex. 5) did not fulfil the requirements of Clause (a) of the Act being the setting aside in appeal of the decree of the Court of first instance in suit No. 679 of 1956, and that being founded on an eventuality would not be a sound basis.
I do not think that such a basis is not on a sound foundation. The decree in appeal finally determined the rights of the parties and is binding on Smt. Parbati, Lalman and Babu Lal who were all parties to that litigation. It is on that basis that the rights of the parties would be determined in the instant suit also. Moreover, assuming that the appeal in suit No 679 of 1956 had not succeeded even then on the view which I have taken of Clause (a) of Sub-section (1) of Section 3 of the Act, the notice (Ex. 5) would remain a notice by the co-owners taking Smt Parbati representing Lalman also, demanding a part of the arrears of rent due. The intimation to Babu Lal in Ex 5 to the effect that Rs 527 were due as arrears of rent for thirtyone months cannot be said to be a demand for payment of that amount The demand is clearly of an amount of only Rs 263-8-0 1 am, therefore, unable to agree with the learned counsel for the appellant that had the appeal in suit No 679 of 1956 not succeeded the notice would have been a good notice of demand and that the eventualities of the litigation ought not to be taken into consideration for judging its validity.
7. Since I have held above that the so-call ed notice of demand (Ex. 5) dated 22-11959 was not a notice of demand as contemplated by Clause (a) of Sub-section (1) of Section 3 of (he Act, the suit of the plaintiff-appellant was barred by Section 3 of the Act.
8. The result, therefore, is that this appealstands dismissed. Since, the defendant-respondent has succeeded on a view which was nevercanvassed in the Courts below, I think the parties should be directed to bear their own costsof this appeal and I order accordingly.