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Lala Raj Narain v. Sita Ram Sri Kishen Das

Allahabad High Court

Nov 3, 1950

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Opinion Summary — Malik, C.J.

Factual and Procedural Background

The opinion arises from multiple Second Appeals heard by the Court and deals primarily with two Second Appeals identified in the opinion as Second Appeal No. 979 of 1945 and Second Appeal No. 1946 of 1946. The opinion also refers to a related Letters Patent Appeal No. 1 of 1945 decided by the Bench on 20 January 1949 and to another Second Appeal (No. 15 of 1945) that was compromised so that the point of law there was not decided.

Second Appeal No. 979 of 1945 (first matter summarized): A suit for ejectment was filed by a landlord against a month-to-month tenant. The tenancy began on the 9th day of a Hindi month at a rent of Rs. 25 per month. The landlord gave notice of ejectment on 29 March 1943, alleging arrears of Rs. 175. The landlord applied for and obtained the District Magistrate's permission to file a suit for ejectment by order dated 19 October 1943 (Ex. 1). The suit was filed on 14 December 1943 seeking ejectment and recovery of rent arrears. The trial Court dismissed the ejectment claim but awarded arrears of Rs. 150. The lower appellate Court awarded arrears of Rs. 175 but disallowed ejectment on three grounds (invocation of Section 114, reliance on Makhan Lal v. Shankar Lal, and a finding that rent was not outstanding).

During the pendency of this appeal the U.P. (Temporary) Control of Rent and Eviction Act (III of 1947), as amended by Act XLIV of 1948, came into force; Sections 14 and 15 of that Act are relevant to the Court's statutory analysis. The Court considered whether Section 15 applied retrospectively to suits pending at commencement, and how Section 3 of the Act interacted with the requirement of District Magistrate permission and with a subsequent amendment (XLIV of 1948, s.10).

Second Appeal No. 1946 of 1946 (second matter summarized): A suit for ejectment and arrears was filed on 4 November 1944. The trial Court decreed possession and arrears but recorded a note that, in view of the District Magistrate's order, the decree for possession could not be executed while the Defence of India Rules (D.I.R.) remained in force. The plaintiff appealed seeking deletion of that note and immediate ejectment. The procedural background included an earlier suit (No. 304 of 1943) in which the defendant had deposited rent sums into Court under an interim order, and subsequent contentions about whether such deposits amounted to payment and whether the defendant had "wilfully" defaulted under Clause (a) of Section 3 of the U.P. Act.

Legal Issues Presented

Whether a Civil Court should ignore or give effect to an order of a District Magistrate made under the Defence of India Rules that restricts filing or execution of ejectment proceedings.
Whether Sections 14 and 15 of the U.P. (Temporary) Control of Rent and Eviction Act (III of 1947), as amended, operate retrospectively so as to affect suits and decrees pending or in existence when the Act came into force, and whether the word "suit" in Section 15 includes proceedings at appellate stages up to the final court.
How Section 3 of the U.P. Act (and its amendment by XLIV of 1948, s.10) should be interpreted concerning when permission of the District Magistrate is required for filing a suit for eviction and whether suits in existence on commencement were restricted to grounds (a)–(f) only.
In the facts of Second Appeal No. 1946 of 1946, whether a tenant who deposited disputed rents into Court before the issuance of a notice of ejectment can be said to have "wilfully" failed to make payment under Clause (a) of Section 3.

Arguments of the Parties

Appellant's Arguments (as expressed or relied upon in the opinion)

In Second Appeal No. 979 of 1945, the plaintiff-landlord alleged that rents were in arrears (Rs. 175) and that he had obtained the District Magistrate's permission to file the ejectment suit (order dated 19 October 1943), entitling him to pursue ejectment.
In Second Appeal No. 1946 of 1946, the plaintiff relied on Clause (a) of Section 3 of the U.P. Act, claiming the tenant had "wilfully failed" to pay arrears within one month of notice and therefore plaintiff had a right to eject.

Respondent's / Defendant's Arguments (as expressed or relied upon in the opinion)

In No. 979 of 1945, the defence contended that rent was not in arrears, that rent had been paid in accordance with a mutual arrangement, and that the notice of ejectment was illegal.
In No. 1946 of 1946, the defendant relied on the fact that he had deposited the disputed rent sums into Court (pursuant to an earlier interim order in Suit No. 304 of 1943) and argued that the plaintiff could withdraw the deposits — an act the Court treated as evidence of the defendant having made provision for payment rather than a "wilful" refusal to pay.
Respondent's counsel in the first matter urged that Section 14 of the U.P. Act might prevent execution if the tenant agreed to pay "reasonable annual rent" or the previous rent; the Court declined to decide that question at the present stage, leaving it to execution proceedings if necessary.
In the second matter, counsel for the respondent raised a point that because the defendant had not appealed against a decree passed by the Munsif, that decree should be restored — the Court noted, however, that on appeal that decree had been modified by the lower appellate Court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Letters Patent Appeal No. 1 of 1945 (decided 20 Jan 1949)	That if an order passed by a District Magistrate under the Defence of India Rules was valid and had the force of law, Civil Courts should not ignore it when considering ejectment; and that if a decree was nonetheless passed in spite of such a valid order, the executing Court could not ignore the decree and refuse to eject.	The Court relied on that reasoning in assessing the interaction between District Magistrate orders under the Defence of India Rules and Civil Court decrees; the decision informed the Court's approach to whether Civil Courts may ignore DM orders and to the treatment of decrees passed during the operation of such orders.
Makhan Lal v. Shankar Lal — 1944 All. L.W. 591	Held (per Mr. Justice Allsop) that a suit for ejectment should be decreed but the execution department should not eject the tenant in execution of the decree.	The opinion states that Makhan Lal has been overruled and that the Court did not see relevancy in following that decision for the present case.
Quiltor v. Mapleson — 1882 9 Q.B.D 672	Interpretation under an English statute (Conveyancing and Law of Property Act, 1881) that the Legislature intended to give lessees relief for past and future breaches, and that such relief applied to pending proceedings; the Court of Appeal held the enactment applied to pending proceedings.	The Court cited the case to support the proposition that a statutory provision designed to give relief could apply to proceedings pending when the statute came into force, and used it in reasoning that Section 15 of the U.P. Act was retrospective in effect.
Chandra Shekhar Tewari v. Shri Bhagwan Radha Khishna through Pt. Jai Narain Trivedi — 1947 A.W.R Oudh p. 3	A learned single Judge of the Avadh Chief Court had held that the word "suit" could not include an appeal.	The Court considered that decision but disagreed with its narrow reading; the present Bench held that "suit" in Section 15 was intended to include proceedings up to the Court of final appeal, and therefore applied Section 15 to the appeals before it.

Court's Reasoning and Analysis

The Court proceeded in a sequential statutory and factual analysis, applying statutory text, prior decisions, and the particular facts of each appeal:

District Magistrate orders under Defence of India Rules:
- The Court reviewed earlier divergent single-judge views on whether Civil Courts should ignore District Magistrate orders issued under the Defence of India Rules. Relying on the Letters Patent Appeal No. 1 of 1945, the Court reiterated that if the Magistrate's order was valid and had the force of law, Civil Courts should not ignore it when considering ejectment; conversely, if a decree were passed in spite of such a valid order, the executing Court could not ignore that decree and refuse ejectment.
Second Appeal No. 979 of 1945 — relevance of permission and statutory provisions:
- The Court examined the District Magistrate's order (para. 4) under the Defence of India Rules which forbade eviction without prior sanction of the District Magistrate where no rent was outstanding and the premises were used in accordance with original terms. The Court interpreted that provision to mean that where rent was outstanding a landlord could sue without DM permission, whereas in all other cases DM permission was required.
- Although on the pleaded facts the plaintiff alleged rent arrears and therefore need not have sought permission, the plaintiff had in any event obtained permission on 19 October 1943. Given that permission had been obtained, no restriction remained on the suit being decreed under the DM order.
- The Court rejected the lower appellate Judge's reliance on Section 114 of the Transfer of Property Act as irrelevant to the tenancy situation in the record, and observed that Makhan Lal v. Shankar Lal had been overruled and therefore that authority could not stand to prevent ejectment.
Effect of the U.P. (Temporary) Control of Rent and Eviction Act and retrospectivity:
- The Court considered Sections 14 and 15 of the U.P. Act (III of 1947) as amended. Section 15 provides that in all suits for eviction pending on commencement of the Act no decree for eviction shall be passed except on grounds mentioned in Section 3. Reading Section 15 in conjunction with the Act's text and purpose, the Court concluded the Act was intended to have retrospective effect and apply to suits pending on commencement.
- The Court relied on Quiltor v. Mapleson as support for the proposition that where Parliament's intention is to provide relief it can be given retrospective effect to pending proceedings. The Court therefore held Section 15 applicable to the case before it, including proceedings in later appellate stages (rejecting a narrow reading that "suit" excluded appeals).
Interpretation of Section 3 and the Amendment XLIV of 1948:
- Section 3 of the U.P. Act enumerates grounds (a)–(f) on which a suit for eviction may be filed without the District Magistrate's permission. A single-judge decision had interpreted Section 15 to mean that tenants in pending suits could be ejected only on grounds (a)–(f) and also with DM permission.
- The Legislature enacted the Amendment Act (XLIV of 1948, s.10) to clarify that no permission of the District Magistrate is or ever was necessary for filing a suit for eviction on any of the grounds (a)–(f). The Court read the principal Act and the amendment together and concluded that:
  - For suits pending at commencement, Section 15 limited decrees for eviction to the grounds (a)–(f) where DM permission was not required;
  - But where DM permission had been obtained for filing (as in this case, permission dated 19 October 1943), the plaintiff was not confined to grounds (a)–(f) and could pursue ejectment on other grounds as well.
Second Appeal No. 1946 of 1946 — "wilful" failure to pay under Clause (a):
- On the facts of the second appeal, the defendant had deposited the disputed rent sums in Court pursuant to an interim order in an earlier suit (No. 304 of 1943). The Court acknowledged that payment into Court is not the same as payment to the plaintiff, but observed that the defendant had deposited the money so that it could be made payable to the plaintiff and to avoid further dispute.
- The Court reasoned that "wilful" default under Clause (a) envisages a case where, despite demand, the tenant refuses to pay. In this case, because the tenant had timely deposited sums into Court and had not simply ignored the demand, the circumstances did not show a "wilful" failure to make payment. Thus Clause (a) did not entitle the plaintiff to eject under the facts before the Court.
Execution and Section 14:
- Although the respondents urged that Section 14 might prevent execution of a decree if the tenant agreed to pay "reasonable annual rent" or the prior rent, the Court declined to resolve that question at this stage and left it open for the execution department if an execution application were filed.

Holding and Implications

Core Rulings:

Second Appeal No. 979 of 1945: The appeal is allowed; the decree of the lower appellate Court is modified and the plaintiff is granted a decree for ejectment. The Court concluded that because the plaintiff had obtained the District Magistrate's permission on 19 October 1943, the plaintiff was not confined to the restricted grounds (a)–(f) of Section 3 and could be granted ejectment.
Second Appeal No. 1946 of 1946: The appeal is allowed as regards the ejectment direction: the decree for ejectment is set aside. The decree for arrears of rent is to stand. The Court found that, on the facts, the tenant's deposit of disputed sums in Court did not constitute a "wilful" failure to pay under Clause (a) of Section 3.

Implications and immediate consequences:

The direct effect on the parties is (a) in No. 979 of 1945 that the plaintiff obtains a decree for ejectment, and (b) in No. 1946 of 1946 that the ejectment injunction is removed and the decree for arrears remains.
The Court held that Sections 14 and 15 of the U.P. Act operate so as to apply to suits pending on the date of commencement (Section 15) and that the amendment XLIV of 1948 clarified filing rights under grounds (a)–(f) of Section 3; where DM permission had already been obtained, plaintiffs were not limited to grounds (a)–(f).
The Court made no order as to costs in these appeals, noting the statutory changes during pendency as a reason for that decision in the first matter; it also declined to settle the separate execution-stage question under Section 14, leaving that issue to the execution department if and when execution is sought.

This summary is prepared strictly from the content of the provided opinion and does not add information beyond what the opinion itself states.

Show all summary ...

Malik, C.J:— This case was referred to a Bench as a point of law which arose in this case had arisen in another Second Appeal No. 15 of 1945 and that case had been referred to a Bench for decision. We understand from Mr. Jagdish Swarup that the parties to the Second Appeal No. 15 of 1945 entered into a compromise, and so the point was not decided in that case. The point, however, came up for decision in Letters Patent Appeal No. 1 of 1945, which was decided by this Bench on the 20th of January, 1949. During the period that the Defence of India Rules were in force orders were issued by various District Magistrates regulating ejectment of tenants, fixation of rents payable by tenants and various other matters. A question arose whether, when a suit was filed in the Civil Court for ejectment of a tenant in contravention of an order passed by a District Magistrate under the Defence of India Rules, what action the Civil Court should take in view of such an order. A learned single Judge of this Court was of the opinion that the order should be ignored. Another learned Judge had held that the suit should be decreed for ejectment, but the decree should not be executed if there was a valid order passed under the Defence of India Rules prohibiting ejectment of tenants. We held in the Letters Patent Appeal, mentioned above, that, if the order passed by the District Magistrate was a valid order having under the Defence of India Rules the force of law, then it would not be right for the Civil Courts to ignore the order and pass a decree for ejectment. We pointed out in our judgment that, if a decree for ejectment was passed in spite of such an order of the District Magistrate under the Defence of India Rules, it was not open to the executing Court to ignore the decree and to refuse to eject the tenant.

2. In the Second Appeal No. 979 of 1945 the facts are as follows:—

3. There was a suit filed for ejectment, the defendant being a tenant from month to month, the tenancy beginning from the 9th day of the Hindi month, on payment of a rent of Rs. 25 per month. On the 29th of March, 1943, the plaintiff-landlord gave a notice of ejectment on the ground that the tenant had defaulted in payment of rent and was in arrears to the extent of Rs. 175. The plaintiff applied to the District Magistrate for permission to file a suit for ejectment. The permission was given by the District Magistrate by his order dated the 19th of October, 1943—Ex. 1—and the suit, out of which this appeal has arisen, was filed on the 14th of December, 1943, for ejectment and for a decree for arrears of rent. If rents were in arrears it was not necessary for the plaintiff to obtain permission of the District Magistrate in view of paragraph 4 of his order issued in June, 1942. That paragraph is as follows:—

It is further ordered that where no sum on account of rent or allied dues are outstanding against a tenant and where his use of a building or part of a building is in accordance with the original terms of the letting his eviction without his consent is forbidden, unless previous sanction of the District Magistrate, or the officer appointed by him, is obtained.

4. It means that, if any portion of rent is outstanding, or if the building is being used for a purpose other than the purpose for which it was rented, then the landlord has a right to file a suit for ejectment without the permission of the District Magistrate. In all other cases he must obtain the permission of the District Magistrate before he can obtain a decree for ejectment. The plaintiff, on his allegation that rents had not been paid and were outstanding, was not bound to apply for permission, but he did make an application and got the permission on the 19th of October, 1943, as we have already stated above.

5. The defence was that rent was not in arrears, as it had been paid in accordance with the mutual arrangement between the parties, that the suit was not maintainable and that the notice was illegal. The suit was dismissed by the trial Court, except that it passed a decree for arrears to the extent of Rs. 150. On appeal the lower appellate Court passed a decree for arrears of rent, that is, Rs. 175, for seven months up to the month ending prior to the filing of the suit; and the rest was for the period subsequent to the filing of the suit. The plaintiff's prayer for ejectment was, however, disallowed on three grounds: (1) The learned Judge was of the opinion that the defendant was entitled to the benefit of Section 114 of the Transfer of Property Act. (2) The learned Judge followed the decision of this Court in Makhan Lal v. Shankar Lal 1944 All. L.W 591. in which case Mr. Justice Allsop had held that a suit for ejectment should be decreed but the execution department should not eject the tenant in execution of the decree; and thirdly, on the ground that no rent was outstanding. So far as Section 114 of the Transfer of Property Act is concerned we do not see how that had any relevancy to this case. That section provides for a relief against forfeiture. The tenancy here was not for a period, nor was there any question of any forfeiture or any relief against it. The case of Makhan Lal v. Shankar Lal has already been overruled. We do not see what relevancy to the decision of this case the last question that the rent was not outstanding had on the facts stated above. We have already quoted the order of the District Magistrate issued under the Defence of India Rules, which provided that, except where rent was outstanding, or the building was put to any use other than the use for which it had been rented, a suit for ejectment could not be filed without the sanction of the District Magistrate. Here, the suit having been filed with the sanction of the District Magistrate no restriction remained on the suit being decreed under order issued by the District Magistrate under the Defence of India Rules.

6. We are, however, no longer concerned with that order, as, during the pendency of this appeal, the U.P (Temporary) Control of Rent and Eviction Act (III of 1947), as amended by Act XLIV of 1948, came into force. Sections 14 and 15 of this Act are as follows:—

14. No decree for the eviction of a tenant from any accommodation passed before the date of commencement of this Act shall, in so far as it relates to the eviction of such tenant, be executed against him as long as this Act remains in force, except on any of the grounds mentioned in Section 3:

Provided that the tenant agrees to pay to the landlord ‘reasonable annual rent’ or the rent payable by him before the passing of the decree, whichever is the higher.

15. In all suits for eviction of a tenant from any accommodation pending on the date of the commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 3.

7. Confining ourselves to the language of Section 15 alone it would appear that the Act was intended to have a retrospective effect and to apply to all suits for eviction of a tenant pending on the date of the commencement of the Act. It further appears to make it clear that no decree for eviction shall be passed against a tenant except on one or more of the grounds mentioned in Section 3. That would obviously mean on grounds (a) to (f) of Section 3. The fact that the Act was intended to be retrospective is, therefore, clear. In England in a case, Quiltor v. Mapleson 1882 9 Q.B.D 672. under an Act of 1881 where the Legislature had intended to provide against forfeiture the question arose whether the benefit of that Act could fee given to a lessee in an action which was pending on the date when the Act came into force. It does not appear that there was any provision similar to Section 15 in the Conveyancing and Law of Property Act, 1881 (22 and 23 Vict. C. 35). The case was heard by the Court of Appeal, consisting of a particularly strong Bench, and Jessel, M.R, delivering the main judgment of the Court on Appeal held (1) that the intention was to give a lessee a right to relief against forfeiture which he did not previously possess; and (2) that the intention was to give relief not only against future breaches of the contract, but also as regards the past breaches. Having come to these conclusions his Lordship considered the question whether the enactment applied to pending proceedings and held as follows:—

We must, therefore, in furtherance of the objects of the Act, hold the enactment to apply to pending proceedings, unless there is something in the words to prevent our doing so. Mr. Greene argued that this sub-section cannot apply to pending proceedings, because it refers to the conduct of the parties in the foregoing provisions which can only relate to matters after the Act comes into operation; but I think we must treat these words as referring to the conduct of the parties under the preceding provisions, when and so far as the previous provisions are applicable. I think, therefore, that the sub-section is applicable to pending proceedings, and that we have jurisdiction under it, unless the fact of this being an appeal prevents our having it.

8. It is clear that the question whether the Act is to be deemed to be retrospective in its operation must foe determined by the provisions of the Act itself. In the case before the Court of Appeal in England the decision that the Act was retrospective was given as it was held that the clear intention was to give relief to the lessees for past, and future breaches of contract. The case before us is a much stronger case where two sections were enacted—Section 14, restricting the right of execution where the decree had already become final; and Section 15, relating to cases which were still pending on the date when the Act came into force. A learned single Judge of the Avadh Chief Court had held in Chandra Shekhar Tewari v. Shri Bhagwan Radha Khishna through Pt. Jai Narain Trivedi 1947 A.W.R Oudh p. 3 at p. 5. that the word ‘suit’ could not include an appeal. On a consideration of the provisions of the Act, however, and specially in view of the fact that the Act was intended to benefit all tenants even in cases where decrees for ejectment had already been passed against them, we are of the opinion that the word ‘suit’ in Section 15 was intended to apply not only to suits pending in the trial Court but also to a suit in its later stages right upto the Court of final appeal. The Act, to our minds, therefore, clearly applies to this case.

9. The next point, however, is not free from difficulty. Section 15, read by itself, can be interpreted to mean that no suit for ejectment of a tenant can be filed except on the grounds (a) to (f) mentioned in Section 3 of the Act. On the other hand, the proper interpretation of Section 3 appears to be that on grounds (a) to (f) mentioned in Section 3 a suit for ejectment can be filed without the permission of the District Magistrate. In all other cases, it is necessary to have the permission of the District Magistrate before the landlord can file a suit for ejectment. Section 3 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;

(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the accommodation;

(c) that the tenant has, without the permission of the landlord, made or permitted to be made any such construction as, in the opinion of the Court, has materially altered the accommodation or is likely substantially to diminish its value;

(d) that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the landlord's interest therein;

(e) that the tenant has on or after the 1st day of October, 1946, sub-let the whole or any portion of the accommodation without the permission of the landlord;

(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant.

Explanation—For the purposes of Section (e) lodging a person in a hotel or a lodging house shall not be deemed to be sub-letting.

10. Reading Section 3 along with Section 15 a learned single Judge of the Avadh Chief Court had held that a tenant could be ejected only on grounds (a) to (f) mentioned in Section 3 and that also with the permission of the District Magistrate. After that decision the Legislature passed the U.P (Temporary) Control of Rent and Eviction (Amendment) Act (XLIV of 1948), Section 10 of which Act is as follows:—

For the removal of doubts it is hereby declared that under Section 3 of the Principal Act no permission of the District Magistrate is or be deemed ever to have been necessary for filing a suit for eviction against a tenant on any of the grounds mentioned in Clauses (a) to (f) of the said section.

11. This Amendment Act attempts to make it clear that if any of the grounds (a) to (f) exists, then a suit for ejectment of a tenant can be filed, and it is not necessary to go to the District Magistrate for his permission. There being no other provision restricting the right to file suits for ejectment in the U.P (Temporary) Control of Rent and Eviction Act (III of 1947) a suit for ejectment need not be confined to grounds (a) to (f), provided the permission of the District Magistrate has been Obtained. The result of interpreting Section 15 differently is that we get this anomaly that, while in all suits pending on the date when the Act came into force, the orders of ejectment could be passed only on the restricted grounds mentioned in Clauses (a) to (f) of Section 3, in suits filed after the Act came into force the tenant could be ejected on any grounds whatsoever, provided the permission of the District Magistrate had been obtained. Reading the two sections together we are inclined to the view that Section 15 was intended to mean that the provisions of Section 3 would be applicable to all pending suits and that a tenant could be ejected on grounds (a) to (f) without the permission of the District Magistrate, but that, in a case where the permission of the District Magistrate was Obtained, he could be ejected on any ground. In case the permission of the District Magistrate had been obtained on the 19th of October, 1943. The plaintiff was, therefore, not Confined to grounds (a) to (f) mentioned in Section 3 and should have been granted a decree for ejectment as claimed by him.

12. The result, therefore, is that we allow this appeal, modify the decree of the lower appellate Court and grant the plaintiff a decree for ejectment.

13. Learned counsel for the respondents has urged that we should make it clear that the provisions of Section 14 of the Act apply and the decree cannot be executed if the tenant is willing to pay ‘reasonable annual rent’ or the rent payable by him before the passing of the decree, whichever amount is higher. We do not think it is necessary for us at this stage to express any opinion. It would be open to learned counsel to raise this point in the execution department, if an application for execution by ejectment is filed by the decree-holder. In view of the fact that this Act came into force during the pendency of this appeal we make no order as to costs of this appeal.

14. Coming to the other Second Appeal No. 1946 of 1946, the suit for ejectment and arrears of rent, out of which this Second Appeal has arisen, was filed on the 4th of November, 1944. The trial Court passed the following decree:—

Plaintiff's suit for Rs. 212-7-0 and possession by ejectment of defendant is decreed. We may withdraw this sum out of the amount deposited in suit No. 304 of 1943, in the Court of Munsif, Agra, Madan Mohan Garg v. Pooran Chand, if defendant has not withdrawn the sum of Rs. 252 from the Court. Parties to bear their own costs.

(Note: In view of the District Magistrate's order, the decree for possession cannot be executed till the D.I.R is in force.)

15. The defendant submitted to that decree, but the plaintiff filed an appeal. The plaintiff wanted that this note appended at the end of the judgment should be deleted and that he should have an immediate right to eject the defendant. The learned Judge was of the opinion that the order disallowing ejectment could not be legally sustained. He, therefore, modified the decree and removed the ‘note’, but gave the defendant six months' time to vacate, unless he decided to contest the matter in the execution department. It is against that decree that this appeal has been filed.

16. Before the suit, out of which this appeal has arisen, was filed there was a previous suit—No. 304 of 1943—which was a suit for ejectment and for arrears of rent. That suit was decreed on the 3rd of December, 1943. There was an appeal filed and the learned District Judge, before whom the appeal was pending, granted an interim stay on condition that the whole of the rent due up to the date of that order and costs were paid into court. The decree-holder was, however, not to withdraw the money till the final decision of the case. In accordance with this order the defendant deposited a sum of Rs. 175 on the 24th of January, 1944. He deposited further sums in court as the rent fell due. The suit was, however, dismissed on the 29th of September, 1944, and the appeal filed by the plaintiff also failed on the 9th of March, 1945. After the dismissal of the first suit and during the pendency of the appeal filed by him, the plaintiff gave a notice of ejectment claiming Rs. 252 as arrears of rent on the 2nd of October, 1944. The defendant, in his reply dated the 3rd of October, 1944, mentioned the fact that he had deposited the whole of the money in court in Suit No. 304 of 1943 and that the plaintiff could withdraw that amount. The plaintiff, however, filed the suit on the 4th of November 1944, without any further correspondence. On behalf of the plaintiff reliance is placed on Clause (a) of Section 3 and it is claimed that the plaintiff had a right to eject the defendant, as the defendant had ‘wilfully failed’ to make payment to the plaintiff of the arrears of rent due within one month of service upon him of the notice of demand.

17. The question for decision, therefore, is whether, on the facts stated above, it can be said that the defendant had ‘wilfully’ failed to make payment. It is true that depositing the money in court was not payment to the plaintiff, but the money had obviously beer deposited, so that it might be made payable to the plaintiff and there might be no further dispute about it. The defendant might have been under a misapprehension when he gave the notice that the plaintiff could go and withdraw the money from the Court, but the plaintiff not having given him any further notice, it cannot be said that the tenant had made a ‘wilful’ default. Wilful default after notice envisages a case where, in spite of the demand made the tenant does not pay the rent. In the case before us, even before the notice, the tenant had made a deposit in Court to the credit of the plaintiff. He might have been wrong in his view that the payment into Court was payment to the plaintiff and he might have had no right to ask the plaintiff to withdraw the money, but in our view in the circumstances of this case it cannot amount to a ‘wilful’ default. The plaintiff was, therefore, not entitled under Clause (a) of Section 3 to eject the defendant. Learned counsel for the respondent has raised one short point, that in view of the fact that the defendant had not filed an appeal against the decree passed by the learned Munsif, the decree of the Munsif must be restored, but on appeal by the plaintiff that decree was modified and a fresh decree was passed by the lower appellate Court. In view of the decision in the Letters Patent Appeal No. 1 of 1945 and in view of what we have said above, the appeal as against that part of the decree which has directed the ejectment of the defendant must be allowed and the decree for ejectment set aside. The decree for arrears of rent shall, however, stand. We make no order as to costs of this appeal.

18. Appeal allowed.