BIBBO Vs. SHEIKH BARIK ALI

JUDGEMENT

(1.) This is defendant's second appeal in a suit for ejectment filed by the respondent against her from the suit premises. The plaintiff is the Mutawali of a waqf and the defendant was a tenant in the said premises at the rate of Rs. 43. 75 per month. It is alleged that the defendant fell in arrears and a notice for demand and termination of tenancy was sent on 16-5-1968, which was admittedly served on the defendant on 20-5-1968. The defendant is alleged to have failed to pay the rent within time and as such suit for ejectment was filed against her. The defendant, however, contended that soon after the receipt of the notice personal tender was made but when the plaintiff refused to accept the same the money was sent by money order on 18-6-1968. On 19-6-1968 a reply to the notice was also sent. On 26-6-1968 a second notice was sent by the defendant in which a mention was made that the money order has been sent on 18th June. Both the Courts below have found against the defendant on the question of oral tender of rent to the plaintiff. It has also been held that the money order coupon on which the endorsement of refusal was allegedly made by the post office had been com pletely washed off and it is not possible to say as to on which date the money order was actually tendered to the landlord. Since there was no other evidence on this point it was held that the defendant having failed to prove actual tender of the rent to the landlord within one month of service upon him of service of demand had legally committed default in the payment of rent and as such was held liable for ejectment. Aggrieved by the decision this appeal has been filed. In this appeal only short point arises for determination as to whether the money order sent on 18-6- 1968 two days before the expiry of 30 days dead line was tendered to the plaintiff or not. The counsel for the appellant has sub mitted that it is true that the endorsement of the refusal made by the postal authorities cannot be read and is illegible in view of its having been washed away by water yet a presumption under Section 114 of the Evidence Act was still available to the defendant according to which the Court can presume that ordinarily the money order sent in the same city would be tendered the next day or latest by a day after. The counsel for the respondent has sub mitted that there is no evidence on the record to show that the money order had been tendered to the landlord within 39 days and it was possible for the defendant to have summoned the record from the post office to show as to how the postal money order was dealt with by the Department after it was accepted for transmission by it on 18-6-1968. It is true that no such evidence has come and that could have been the best evidence in this respect. How ever, the Importance of Section 114 of the Evidence Act cannot be ignored and it always comes into play when there is no evidence of a particular fact. If the evidence is there the question of making presumption would not arise at all. Relevant portion of Section 114 reads as under: Section 114: "the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. " Illustrations. The Court may presume.- (a ). . . . . . . . . . . . (b ). . . . . . . . . . . . (c ). . . . . . . . . . (d ). . . . . . . . . . . . (e ). . . . . . . . . . . . (f) that the common course of business has been followed in particular case. In view of this provision in the Evidence Act the Court can presume that in the ordinary course of postal business registered letters and money orders are normally delivered to the addressee in the same town either the next day or at the latest on the day thereafter. In this case also the parties are the residents of the same town and the money order had been sent on 18-6-1968. There is however no reason that it must have reached the ad dressee on 20th May 1968. In Zareef Khan v. Mukhtar Ahmad 1964 A. L. J. 148, wherein it was held: "where the parties live in the same city and the same postal area the Court may, under Section 114 of the Evidence Act the normal course of business must have been followed and the money order sent by 13th July reached the landlord on the 14th July, though the exact time of the delivery cannot be ascertained. " A presumption about the official acts and common course of business was again the subject matter of a decision by this Court in Ganga Ram v. Smt. Phulwati A. I. R. 1970 Alld. 446 wherein a Full Bench of this Court held: "that the presumption of this nature under Section 114 (e) and (f) does arise. In another case Smt. Parmeshwari Devi v. Abrar Husain A. I. R. 1971 Alld. 22 M. N. Shukla, J. held that. "where the landlord and tenant resided in the same city, presumption can arise that the normal course of conduct was followed by the postal authorities and the amount sent by money order a week before the last date was tendered to the addressee or his agent before the expiry of the period. " Reliance has also been placed on the Full Bench of this Court in Bhikha Lal v. Munna Lal A. I. R. 1974 Alld. 366 wherein it was held that: "the post office was the agent of the landlord and the mere fact that the tenant had put the money demanded in transmission to the landlord through the post office would be the date when the payment would be deemed to have been made to the landlord. " This ruling, however, is not exactly on the point which is under consi deration in the instant case. On a consideration of the entire case law referred to above and the facts of the present case, I have no hesitation in holding that a reasonable presumption could bs raised in this case that by the tenant sending the rent by money order on 18-6-1968 the same must have been in the ordinary course tendered to the landlord latest by 20th May 1968. That being so there would arise no question of default having been committed by the tenant and I have no hesitation in holding accordingly. The suit of the plaintiff for ejectment, therefore, will stand dismissed. The appeal is, therefore, allowed and the suit of the plaintiff is decreed only for the recovery of the arrears of rent. In other respect the suit shall stand dismissed and the parties shall pay and receive costs according to their success and failure throughout. .