1. This is a defendant's second appeal arising out of a suit for recovery of arrears of rent and mesne profits and for ejectment.
2. The facts briefly are that the defendant was a tenant of the plaintiff, that the tenancy commenced on the 17th of each English calendar month, that the plaintiff obtained a decree for arrears of rent for the period ending February 16, 1959 that in May 1959 the defendant remitted a sum of Rs. 77/- by money order to the plaintiff intending the amount to cover the rent due under the decree and also of the period ending May 16, 1959. It appears that this money order was refused by the plaintiff. Subsequently he served a notice on July 13, 1959 upon the defendant demanding arrears of rent due for the entire period ending June 16, 1959. There is no dispute that no payment was made by the defendant consequent to this notice.
3. When this case was heard by our brother Gupta it was contended that the rent having been tendered by money order, it must be considered that the defendant had paid the rent, and, therefore, there were no arrears of rent due for the period up to May 16, 1959 and, accordingly when the notice was served upon the defendant he was not in arrears of rent for more than three months. Reliance was placed by the defendant upon a decision of our brother Mithan Lal in Khushro S. Gandhi v. Ferjunji J. Gandhi, 1962 All LJ 1086. The learned single Judge hearing this appeal, however, did not accept the expression of law contained in the aforesaid decision, and being of the opinion that the view upon which it was founded deserved reconsideration he referred the appeal before him to a larger Bench.
4. Learned counsel for defendant has pressed the same contention before us as he did before the learned single Judge. He urges that the rent due up to May 16, 1959 having been tendered by money order, it must be considered that payment had been effected and there were no arrears of rent relating to that period, even though the money order had been refused. We are unable to accept this contention. The relevant provisions of Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 are as follows:
'3. Restrictions on eviction--(1) Subject to any order passed under Sub-section (3) no suit shall, without the permission of the District Magistrate, be filed in any civilCourt against a tenant for his eviction from any accommodation, except on one or more of the following grounds: (a) that the tenant is in arrears of rent for more than three months and has failed to pay the some to the landlord within one month of the service upon him of a notice of demand;'
It will be noticed that the right of the landlord to sue the tenant for ejectment accrues upon the tenant being in arrears of rent for more than three months and upon his failure to pay those arrears within one month of the service of a notice of demand. The words 'in arrears of rent' refer to an outstanding liability in respect of rent, and it is plain that if the rent for more than three months has not in fact been paid, it must be held that this rent is in arrears. In our judgment, it is immaterial that the tenant has attempted to pay the rent but the rent has not been accepted by the landlord. An unsuccessful attempt on the part of the tenant to pay the rent cannot lead to the conclusion that the rent has been paid and is not in arrears, even if the failure of the attempt can be attributed to the landlord. The statute is concerned with the simple fact that there is an outstanding liability respecting rent, whatever the reason for it may be. In view of the fact that a notice was served by the plaintiff upon the defendant demanding the arrears of rent, and there being no dispute that no payment was attempted by the defendant after service of such notice, we must hold that the plaintiff became entitled to sue the defendant for ejectment by virtue of the provisions of Section 3(1)(a).
5. In passing, we might observe that the decision in 1962 All LJ 1086 is distinguishable upon its facts. That was a case where it was understood between the landlord and the tenant that payment of the rent would be made by cheque, where payment had throughout been made in this manner, and cheques had been received and encashed by the landlord. Subsequently, upon certain cheques having been sent by the tenant to the landlord, the landlord had taken receipt of the cheques but had not encashed them. Clearly, the tenant had effected payment according to the terms agreed between the parties. In such circumstances, it was said that there were no arrears of rent. In the present case, however, there was no agreement that payment would be made by money order, and in any event a money order is only a mode of forwarding money, where-as a cheque ordinarily operates as conditional payment which is rendered ineffective only if it is not honoured. Therefore, the mere fact that a money order was sent by the tenant cannot mean that he effected payment.
6. No other point has been pressed before us. The result is that the appeal fails and is dismissed with costs.