KESHARI MAL Vs. IVTH ADDL DISTRICT JUDGE JALAUN

JUDGEMENT

(1.) SUDHIR Narain, J. This writ peti tion is directed against the order of the Judge, Small Causes Court dated 19-9-1979, Dismissing the suit filed by the petitioners and the order of the Revisional Court, dismissing the revision against the aforesaid order.

(2.) BRIEFLY stated the facts are that the petitioners filed suit for recovery of arrears of rent, ejectment and damages against Respondent No. 3 with the allegations that they had sent notice on 15-11-1997 demanding arrears of rent and terminating his tenancy. This notice was sent on 17-11-1976. They had further sent notice dated 18-1-1977 to the defendant-Respondent No. 3 which was served on 24-1- 1977. He was in arrears of rent for more than four months on the date of service of the notice but in spite of the service of notice the rent was not paid. It was further stated that the defendant had made material alteration in the building. Respondent No. 3 contested the suit. It was stated that on receipt of the notice dated 18-1-1977, he sent money order for the sum of Rs. 660 on 31-7-1977 to Shri-Ram Das father of the petitioners but it was refused. He did not commit any default in payment of the arrears of rent. It was denied that he had made any material alteration in the building in question. He also claimed the benefit of deposit under Section 20 (4) of UP. Act No. 13 of 1972. 3, The Judge, Small Causes Court dismissed the suit by his judgment dated 19-9-1997 with the finding that Respon dent No. 3 committed default in payment of rent but as he had made the deposit on the date of the first hearing as con templated under Section 20 (4) of U. P. Act No. 13 of 1972, the suit was liable to be dismissed. He recorded a finding that Respondent No. 3 has not made any material alteration in the building. The petitioner preferred a revision. Respon dent No. 1 took the view that Respondent No. 3 had not deposited the rent on the date of first hearing. He was not entitled to the benefit of Section 20 (4) of the Act but reversed the finding of the trial Court on the question of default alleged to have been made by Respondent No. 3. The revision was accordingly dismissed on 20-9-1980. This order has been challenged in the present writ petition. 4. I have heard Shri Prakash Gupta, learned Counsel for the petitioner and Shri B. N. Agarwal, learned Counsel for the contesting respondent. Learned Counsel for the petitioner urged that the revisional Court was not justified in Reversing the finding of the trial Court on the question as to whether Respondent No. 3 had committed default in payment of arrears of rent. If the Revisional Court finds that there is manifest illegality in recording the finding it can either remand the matter or in cer tain circumstances can reverse the finding. 5. On the facts of the present case the question was as to whether Respondent No. 3 had remitted the money order within one month from the date of service of the notice and secondly, whether the addres see refused to accept the amount sent to him by money order. 6. Respondent No. 3 had filed receipt dated 31-1-1977 by which it was proved that he had sent money order for Rs. 660. This receipt was exhibited as Ex. A5. This clearly established that he had sent the money order. The trial Court also did not disbelieve this fact that the defendant had sent the money order for Rs. 660 on 31-1-1977 within one month from the date of service of the notice. 7. The next question is whether this amount sent by money order was refused by Ram Das, Respondent No. 3 appeared as DW-1 and categorically stated that the amount was not accepted but was refused by Ram Das, father of landlord and there after the amount was returned to him. Ram Das himself did not appear in the witness box but Keshari Mai, Plaintiff No. 1, appeared as PW-1. He could not say whether the money order was refused by Ram Das. It was only Ram Das who could have stated as to whether he had refused to accept the money order. There is a presumption under Section 114 of the Evidence Act that the transaction had taken place is accordance with the proce dure prescribed. There was no allegation that the post man had colluded with defen dant- Respondent No. 3. 8. Secondly, the money order if it is refused, the amount is returned. In Post Office Rules there is nothing to show that endorsement of refusal is to be given on the money order coupon indicating that the addressee refused to accept the money. 9. Thirdly, Santosh Kumar was minor and Ram Das, his father was guardian. The petitioners 1 and 2 were major sons while Santosh Kumar, petitioner -No. 3 was minor. The money order was sent to Ram Das. The trial Court acted illegally in hold ing that the money order was illegally sent to Ram Das. Any one of the co- landlords could have accepted rent. In these cir cumstances, the finding of the trial Court was incorrect and the Revisional Court was justified in recording the finding on the question whether the money order was sent to the plaintiffs and it was refused by the landlord. It is not a fit case for inter ference under Article 226 of the Constitu tion of India. The writ petition is accordingly dis missed. The parties shall however, bear their own costs. Petition dismissed. .