1. ' This second appeal is filed by the appellant/landlord which arises from the impugned judgment dated 26-9-1978, against which cross second appeal has already been filed by the tenant as Second Appeal No, 430/78. Since both appeals are connected, they were heard together and Second Appeal 430/78 has been disposed of by separate judgment. I propose to dispose of this appeal also by a separate judgment.
2. ' Shortly stated the relevant facts are that appellant/landlord filed ejectment application in the Court of Rent Controller for eviction of the respondent/tenant on the grounds of default and requirement of premises for personal use. The tenant contested the proceedings and ultimately application for ejectment was dismissed by the Rent Controller on both the grounds. The landlord aggrieved against the order of the Rent Controller dismissing his application for ejectment, went into appeal which has been allowed by the First Appellate Court on the ground of requirement of premises for personal use but on the issue of default the appeal has been dismissed. By this appeal the landlord has called in question negative finding of the First Appellate Court on the issue of default, while the tenant has filed separate second appeal against the positive finding of the First Appellate Court on the issue of requirement of premises for personal need. In this appeal on the issue of default the findings of both the Courts below are concurrent and against the appellant.
3. The learned counsel for the appellant has contended that the findings of the Courts below are inconsistent with the record and evidence has been misread. According to the learned counsel for the appellant there is documentary evidence which proves clearly that default is not only committed by the tenant but it is also admitted. He has also submitted that agreement of lease was executed by the parties on 1st May. 1967, regulating the terms and conditions which provided that the premises in question were rented out for monthly rent of Rs, 600 payable quarterly in advance. This agreement was valid for two years and after expiry of that period could be renewed again for a further period of two years on the same terms and conditions which was done. It is further stated that after the expiry of the period of agreement the parties continued the tenancy on the same terms and conditions, According to the learned counsel for the appellant both parties had agreed that the rent was payable quarterly in advance, which means that the rent was to be paid by the tenant to the landlord before the commencement of the period of three months for which the rent was payable. Statement of account Exh. 5/B has been filed which shows that rent has been paid by the tenant by way of cheques making payments quarterly but such payment has been made during the currency of that quarter and not before the commencement of that quarter as claimed by the landlord. On this premise it is contended on behalf of the appellant that there has been breach of the condition incorporated in the agreement that the rent was payable by the tenant quarterly in advance. Statement of accounts shows that cheque for the payment of rent for January to March 1972 was received on 5-2-1972 and in this manner there are for other entries showing quarterly payments having been made during the currency of those periods. There are three other entries which show that rent for October to December 1972, and January to March 1973 was paid by cheque on 14-2-1973 and April to September 1973, was paid by cheque on 16-9- 1973 and for October to December 1973, and January to March 1974, was paid by cheque on 5- 3.1974. Cheque numbers and other requisite particulars are mentioned in the statement of accounts Exh. 5/B. The factual position contained in this document is not disputed by the parties but the controversy between them is with regard to the interpretation of the terms and conditions in the agreement that rent was payable quarterly in advance. According to the landlord it is payable in advance before the commencement of the quarter for which the rent is to be paid and according to the tenant, it can be paid on any date before the expiry of that quarter. The landlord and the tenant were examined before the Rent Controller.. Both the Courts below have rejected the plea of default on the ground that even if there was default the landlord has condoned it by not taking objection against the late payment. This finding by the two Courts below appears to be just and proper and consistent with the record. Before the ejectment application was filed by the landlord, there was exchange of letters between the parties which have been brought on the record. These letters do not contain any reference to the late payment or objection by the landlord to the late payment by the tenant. These letters are Exhs. 4-B/1 to 4-B/11. There is mention in these letters about the payment of rent, repairs to be carried out and other matters but there is absolutely no mention in these letters that any objection was taken by the landlord that the tenant A paid rent late and did not pay in advance before the commencement of the quarter. The parties entered into agreement in the month of May 1967, and the agreement was valid for two years, which was once renewed and thereafter the parties continued relationship of landlord and tenant on the same terms and conditions. Right from May 1967, up to the filing of ejectment application on 10th March 1975, no objection was taken by the landlord and for the first time in the application for the ejectment default is alleged to have been made in the statement of accounts on showing the acceptance of payment of cheque by the landlord during the currency of the quarters. Such objection is belated and can be deemed as having been condoned by the landlord because no such objection was taken earlier as is manifest from the correspondence between the parties.
4. ' The learned counsel for the appellant has pointed out that in letter Exh. 4-B/3 addressed by the tenant to the landlord, it is admitted by the tenant that some repairs were to be carried out, which were in fact carried out by the tenant, who had incurred the expense of Rs, 162.70 on that account as per five cash memos. The tenant has further stated in that letter that he had taken liberty of taking amount from the rent due for that period and in fact this amount was deducted from the rent. Another letter Exh. 4/B written by the tenant to the landlord also indicates that Rs, 200 were deducted from the rent provisionally for the purpose of repairs. Exh. 4-B/5 is again a letter written subsequently by the tenant to the landlord in which it is mentioned that he had withheld payment of Rs, 200 on account of repairs which could not be carried out by him as such he would adjust that amount. On the basis of these admissions in these letters, it is argued by the counsel for the appellant that the tenant deducted the amounts without express permission of the landlord for repairs as such this action amounts to default. The correspondence of the letters again does not indicate that landlord had taken exception to the deduction of money for repairs by the tenant.
5. When no such objection is taken, it is implied that landlord has condoned C this action taken by the tenant. It is for these reasons that I hold in the circumstances of this case the finding of the two Courts below that no default is proved, is maintainable and there is no reason to interfere with the same.
6. ' In the result the impugned judgment is upheld and appeal is dismissed with no order as to the costs.