Randhir Singh, J.
1. This is a second appeal arising out of a suit for arrears of rent and for ejectment from a house.
2. It appears that the defendant-appellant was a sub-tenant of the plaintiff in occupation of a shop in Aminabad the monthly rent of which was Rs. 28/14/-. According to the allegations of the plaintiff the defendant was in arrears in the matter of rent to the tune of more than Rs. 362/14/- in April 1951. A notice was sent to him demanding payment of arrears of rent within a week and possession of the shop at the end of the month of tenancy, on 9-4-1951.
This notice was sent by registered post (acknowledgment due) and an acknowledgment purporting to have been signed by one Om Prakash was received by the plaintiff. The plaintiff waited till 17-5-1951 and then instituted the suit which has given rise to this appeal for possession and arrears of rent. He also claimed damages for use and occupation for the period following the determination of the tenancy.
3. The defendant contested the suit on various grounds. Two of the main grounds which have now been pressed in appeal are that the defendant had not been in default till after the expiry of one week after 11-4-1951 when the notice is said to have been delivered. The second point urged was that the notice had not been served upon the defendant and as such the suit was bad for want of a valid notice under Section 106, Transfer of Property Act. Both the courts below found in favour of the plaintiff and have decreed the claim for possession and arrears of rent. The defendant has now come up in second appeal.
4. The first point urged on behalf of the appellant is that the appellant should not be deemed to have been a defaulter till the expiry of one week after 11-4-1951 inasmuch as the plaintiff had given a week's time to the defendant for payment of rent and this period of one week should be added to the period of one month mentioned in Section 3 (1) (a) as it stood at the time when the suit was instituted. The relevant part of Section 3 (a) of the U. P. Control of Rent and Eviction Act as it stood on the date of institution of the suit is as follows:
'No suit shall, without the permission of the District Magistrate, be filed in any Civil Court) against a tenant for his eviction from any accommodation, except on one or more of the following grounds: (a) that the tenant has wilfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him, of a notice of demand from the landlord.'
A perusal of the provisions of law mentioned above shows that what was necessary to make a tenant a defaulter was that he should have wilfully failed to pay arrears of rent within one month after a notice of demand had been made In the present case the notice was sent on the 9th of April and was served on 11-4-1951. The present suit was instituted on 17-5-1951.
The defendant was therefore in arrears for a period of more than a month on the date of the suit and according to the provisions of Section 3 (a), U. P. Control of Rent and Eviction Act, the plaintiff had a right to file a suit without any permission from the District Magistrate. The contention that one week's period mentioned in the notice sent should be added to the period of one month mentioned in Section 3 (a) does not find support in law and has no force.
5. The other point raised was that notice had not been delivered to the defendant personally and reliance has been placed on two cases, Gokul Chand v. Shib Charan, 9 All LJ 574 (A), & Gobinda Chandra Shah v. Dwarka Nath Patita, 19 Cal WN 489: (AIR 1915 Cal 313) (B). Both these cases were decided before Section 106, Transfer of Property Act, was amended by Act XX of 1929. Before this amendment the relevant words, of the section were as follows:
'Every notice under this section must be In writing signed by or on behalf of the person giving it, and tendered or delivered either personally to the party who is intended to be bound by it, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.'
Under the provisions of Section 106 mentioned above it was necessary to prove that the notice had' been delivered either personally to the party or to one of his family or servants. There was no provision for service of notice by post and this provision was introduced by the Amending Act) XX of 1929. The relevant pan of Section 106 as amended in 1929 is as follows:
'Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.'
The purpose of the amendment, evidently, was to make service by post an alternative provision for giving the notice under Section 106. The words requiring the delivery or tender of notice to the lessee 'personally or to one of his family or servants' did not apply to a notice sent by post. The two cases relied upon by the learned counsel for the appellant are therefore of no material assistance in interpreting the law as is stands now.
6. It has further been urged that the defendant had stated on oath that notice had not been received by him and it is argued on the basis of this statement that the presumption Which arose under Section 114 of the Evidence Act stood rebutted. Under the provisions of Section 106 of the Transfer of Property Act as amended it is not necessary that a notice sent by a registered post should be delivered personally to the lessee or to one of his family or his servants.
In the present case a notice had been received by somebody who signed as Om prakash on behalf of the addressee. The defendant must have been in the know of the person who signed the notice when it was delivered at the defendant's shop and this being exclusively within his knowledge it was his duty to have proved that this person who signed as Om Prakash was neither his servant nor agent nor a member of his family and in the absence of proof on this point the presumption which arose in the case of a registered letter delivered at the shop could not be rebutted. The view taken by the two courts below that the notice was served is therefore correct.
7. No other point has been pressed in arguments.
8. As a result the appeal fails and is dismissed with costs to the respondent. Stay order is vacated. Leave to file an appeal has been asked for but I see no good ground for grant of leave to appeal. The prayer is therefore rejected. The defendant is allowed to vacate the premises within a period of two months for which he will have to pay mesne profits at Rs. 28/14/-per mensem.