' This S.A.O. Has arisen out of an ejectment petition filed by the respondent against the appellants, for their eviction from the property in dispute, inter alia on the ground of default. The property was originally purchased by the respondent's father namely, Sufi Chiragh Din, in auction from the Settlement Department. On his death the respondent's name was inserted in the Provisional Transfer Order. He served Sharaf-ud-Din appellant and his mother i,e, widow of M. Fakhr-ud-Din with notice, dated 15-7-1967, under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, claiming rent w,e,f, 19-8-1959 which was the date of auction. The widow of M. Fakhar-ud-Din died during the pendency of the ejectment proceedings and Anis-ud-Din appellant No, 2 was impleaded as a party, as legal representative of the deceased.
2. In the Excise and Taxation Department's record, before 30-6-1961, the property was assessed at the rate of Rs, 100 per month but w. e. f. 1-7-1961, the assessment was increased to Rs, 213 per month and from 1-7-1961 onward, the assessment was made at the rate of Ks. 600 per month. Under the notice, the respondent demanded rent for the demised premises for the period from 19-8-1959 to 30-6-1967 at the rates aforesaid. The ejectment petition was filed on 21-12-1967. The appellant resisted the same and asserted that as the rent offered for payment was refused, the entire rent was deposited in the Court and that nothing was due from them.
3. As there was a dispute between the parties over the rate of the rent, the learned Rent Controller came to the conclusion that the respondent could charge rent at the rate of Rs, 213 per month in accordance with the assessm ent in force, after the transfer of the property to the respondent or for that matter his predecessor-in-interest. It appears that before the auction of the property, the tenant has been paying the rent to the Rehabilitation and Settlement Department at the rate of Rs, 100 per month. But even after the transfer, as against the assessment of Rs, 213 per month, appellant No, 1 continued depositing rent in the treasury at the same rate as paid to the Department. The learned Rent Controller took the view that at the least from the date of service of notice, the appellants were bound to pay the rent at the rate of Rs, 213 per month and further maintained that the rent deposited by appellant No,. 1 fell short of the amount due to the respondent. He thus held the appellants as defaulter and ordered their eviction. These findings were upheld even by the learned Additional District Judge and the appellants' first appeal dismissed on 11-5-78. Hence this S. A.O.
4. I have heard the learned counsel for the parties and examined the record. On behalf of the appellants it has been argued that from the date of service of notice, the respondent could charge rent at the rate of Rs, 213 per month and for the period to that, he could not claim at the rate more than Rs, 100 per month. It was thus, submitted that the rent for the period beyond three years from the date of service of notice was barred by time, and the appellants were entitled to have the amount deposited in the treasury, adjusted towards the future rent and thus there was no default.
The learned counsel also placed reliance on some case-law to support his submission.
5. The contention that before the institution of the ejectment petition, appellant No, 8 all along has been depositing the rent in the treasury at the rate of Rs, 100 per month to some extent, finds support from the record. The treasury challans on the trial Court's file, however indicate that throughout the rent was deposited in the name of the respondent's father Sufi Chiragh Din. The reason given in the written statement for continuously depositing rent in the latter's name was that appellants were not aware of his death. Obviously, the rent deposited in the name of Sufi Chiragh Din, during his lifetime, became his property and for the period after his death, it would belong to the respondent. Needless to mention that under section 30 an occupant becomes tenant of the transferee from the date of transfer and burdened with the liability to pay the rent. The embargo placed on the transferee is that he cannot commence ejectment proceedings against the tenant unless the latter fails to pay the rent due, within three months of receipt of notice. The tenants' liability to pay the rent is not contingent upon the receipt of notice by him. Therefore, if the appellants started depositing rent in the name of the landlord, even before the receipt of notice, that would be counted as. Clearance of their liability. During his submissions, their learned counsel conceded that the rent deposited in the treasury had become the property of the landlord and that the respondent cannot withdraw the same. It being so, there remains nothing available to the appellants, to be adjusted against the rent for the period of three years prior to the notice, or for the period after the receipt of notice by them. The entire reasoning of the learned counsel that they are entitled to adjust the amount of the deposits, towards the clearance of the future rent, is misconceived. The precedents cited by him, have no bearing on the case in hand and, therefore, this judgment need not be burdened with the discussion thereof.
6. According to the learned counsel's own showing, from the date of notice the respondent could charge rent at the rate of Rs, 213 per month. As observed above, the notice is dated 15-7-1967 and whereas the ejectment petition was filed on 21-12-1967. Thus at least, for a period of five months, the appellants were liable to pay at the rate of Rs, 213 per month but they made the deposit at the rate of Rs, 100 per month only. The amount deposited in respect of these five months, thus comes to Rs, 500 only but the rent due stands at Rs, 1,065. The appellants, therefore, clearly committed default in the payment of the rent.
7. When faced with this situation, the learned counsel made another submission that the appellants have all along been eager to pay the rent, and the default, if any, was not wilful.
8. There is hardly any merit in this argument. This plea was not raised by the appellants before any of the Courts below. It does not find mention even in the grounds of appeal before this Court.
Obviously, it is an after-thought. Even otherwise, the default extends over a fairly large period but technically has been confined to five months only. In th circumstances of the case, the defence, that the default was not wilful not available to the appellants.
9. Towards the close of his submission, the learned counsel for the appellants half-heartedly urged that as no notice under section 30 was issued to appellant No, 2, the ejectment petition was not competent.
10. It is to be seen that on the death of the widow of M. Fakhar-udDin, who undisputedly was served, appellant No, 2 who was her son was impleaded as a party. Her other son and the legal representative i,e, appellant No, 1, was also on the record. Appellant No, 2 was brought on the record not in his own right but as a legal representative of his deceased mother. Before her death, he neither claimed any right in the tenancy nor he came forward to be impleaded as a party. The questions of validity of notice and maintainability of the ejectment petitions have been dealt with in the Rent Controller's order, dated 14-5-1968 and I have not been persuaded to differ with him. It is also to be noticed that this objection does not find specific mention in the impugned order and shall be deemed to have been abandoned. Such an objection cannot be entertained now.
11. For the foregoing reason the S.A.O. Having been found without any merit, is dismissed leaving the parties to bear their own costs. The appellants shall hand over the vacant possession of the demised property to the respondent within one month.