BHAGWAN DEVI GOEL Vs. SUSHILA RANI

JUDGEMENT

(1.) This is a landlord's second appeal against a decree for ejectment. Both the Plaintiff and the Defendant in this case are women. The Plaintiff filed a suit for the ejectment of the Defendant on the ground that she had wilfully failed to pay the rent, had been guilty of having created a nuisance and had caused substantial damage to the accommodation by various acts. The suit was dismissed by the trial court and the Plaintiff's appeal was also dismissed. She has come to this Court in second appeal.

(2.) Mr. K.C. Saksena, Learned Counsel for the Appellant assailed the decision of the appellate court on the following grounds: First, he pointed out that the tenant had paid on demand the arrears of rent by cheque crossed, "account payee". The landlord was not bound to accept payment by cheque and returned it to the tenant. There was no other payment within one month of the receipt of notice by the tenant and, therefore, she was guilty of wilful default. I am not impressed by this argument. The facts are slightly different from Learned Counsel's version. It appears that a notice of demand was sent by the landlord on 14 -9 -1953. It was conceded by Learned Counsel that it could not have been received by the tenant on the same day. She sent a reply on 12 -10 -1953 enclosing a crossed cheque for Rs. 300. Learned Counsel admitted that this cheque was received on the next day that is 13 -10 -1953. Instead of returning the cheque forthwith and asking for cash payment, the landlord kept it till 31 -10 -1953 when her counsel wrote a letter to the tenant intimating that payment by cheque was not acceptable. On there facts it is not possible for me to hold that the tenant was guilty of wilful default. It appears to me that the landlord deliberately kept the cheque with herself and waited till the statutory period of one month had expired. If she had intimated to the tenant that she wanted cash payment it is likely that the latter would have paid her in cash. She still had 2 or 3 days left.

(3.) Learned Counsel argued that payment by cheque is no payment. I am not prepared to accept the argument in such broad terms. Whether payment by cheque is treated as cash payment or not depends upon the custom of the locality and the previous practice of the parties. If the tenant had been making payment by cheque and the landlord had been accepting if, the tenant is entitled to think that payment by cheque will be treated by landlord as cash payment. Learned Counsel for the Respondent informed me that there was no evidence on behalf of the Plaintiff that he had refused payment by cheque on previous occasions. The tenant cannot be adjudged a defaulter merely because she made a payment by cheque which is the usual method of payment in these days among large Ss. of people. I, therefore, think that the finding of the appellate court absolving the tenant of any default in the payment of rent is quite correct,