ABDUL BAQI Vs. AKHLAQ AHMAD AND ANOTHER

JUDGEMENT

(1.) We have heard learned counsel for the parties on this special appeal which has been filed by a tenant against the decree for his ejectment on the ground of failing to pay arrears of rent for a period of more than three months within the period of one month from a notice served on the tenant under Sec. 3(1) (a) of the U.P. (Temporary) Control of Rent and Eviction Act. Admittedly in 1958 the appellant was in arrears of rent for more than three months and he received a notice on 4th Sept., 1958 to pay the arrears within one month. This period of one month was to expire on the 4th of Oct., 1958. The appellant, on 30th Sept., 1958 sent the entire arrears by money order. There is no controversy that the money order was addressed to the normal place or residence of the respondent. The findings recorded show that a postman, Rameshwar Dayal, went to the address of the landlord respondent on the 4th of Oct., 1958 with the money and the money order, but the money could not be delivered as the respondent was "not met". Another postman was sent with this money order on 6th of Oct., 1958 and this time the M.O. came back with the report that the respondent was out of station. On the 3rd occasion the money order was taken to the house of the respondent on 10th of Oct., 1958, and on that date the respondent refused to accept it. It was urged in these circumstances that there had been no failure on the part of the appellant to comply with the requirement of the notice. The learned Single Judge has, however, held that there had not been sufficient compliance, and consequently gave the decision against the tenant appellant upholding the decision of the lower appellate court.

(2.) It appears that in dealing with this case the learned single Judge was unnecessarily taken into points which do not arise in this case. One question that the learned single Judge discussed was whether, when the money is sent by money order, the post office is the agent of the sender or of the payee. In the present case this question was, in our opinion, quite unnecessary. Even if the post office be treated as the agent of the sender i.e. the appellant in this case, there is the finding that the postman acting on behalf of the post office actually went to the house of the respondent to give the money (sent through the money order) on 4th of Oct., 1958 which was within the period within which payment had to be made under the notice. The learned single Judge himself accepted that the appellant should have paid the entire amount to the respondent on or before the 4th of Oct., 1958. The post man, even if treated as an agent of the appellant who was the sender of the money order, wanted to tender the money at the house of the respondent within time on 4th of Oct., 1958, but he failed to make the payment because the respondent was "not met", which means that the respondent was not at his house. In a case where a person is required to make a payment to another the duty of the former is to go to the house of the latter and tender payment, and if there be clear evidence that he did so it must be held that there was full compliance with the requirement of making the payment provided this was done within the time prescribed. In this case it is true that the appellant himself did not go to the house of the respondent, but his agent went to his house with the money and that must, therefore, be treated as proper tender of the payment required under the notice. In an ordinary case if a party himself goes to tender payment, and it is alleged that the payee is not found, a suspicion can arise that the case being put forward by the person required to make the payment may be wrong, and the payee may have been inside the house but was not called out. A suspicion can also arise that the person taking the money for payment may have deliberately chosen a time when the payee would not be at his house. In the present case, however, there is the circumstance that the person who in law became the agent of the appellant for tendering payment to the respondent was the postman, a person entirely unconnected with either of the parties, and consequently there is no reason to look at his report with any suspicion. It means that the postman did go to tender the money genuinely but failed to make the payment to the respondent as the respondent was "not met." There is ample authority for the proposition that offer of payment at any reasonable hour at the normal place of residence of the person who is entitled to receive payment absolves the person bound to pay from any liability ensuing by reason of non-payment, irrespective of the question whether payment could not in fact be made because the payee refused to accept or was absent from his residence. The Post Office further adopted the usual course of sending the M.O., again later on. On 6th Oct. the money was again tendered, but the respondent was this time reported to be out of station. It was only on 10th of Oct., 1958, on the third occasion, that the respondent was found, and then he refused to accept the money order. This whole conduct of the respondent makes it quite clear that the respondent in fact did not desire the payment to be made to him and was only seeking an excuse to bring a suit for ejectment. If he genuinely wanted payment of arrears there is no reason why, when only six days had expired after the period prescribed in the notice, he should have refused to accept the payment. Clearly the notice was given for the purpose of getting an opportunity to file a suit for ejectment, and not for the purpose of realising the arrears of rent, and the failure of the respondent to meet the postman on the 4th of Oct., 1958 can, therefore, only give rise to the inference that on that date in law the money was tendered to him. Learned counsel for the respondent urged before us that the requirements of Sec. 3 (1) (a) of the U.P. (Temp.) Control of Rent and Eviction Act and of the notice were that the money should be actually paid and not merely tendered within one month of the service of the notice, and consequently our view that there was tender of the money within the time should not result in the suit for ejectment being dismissed. We are unable to accept this submission. When the law contemplates payment within the time laid down in the notice it must be held that tendering of full payment within that time is complete compliance with the requirements of the notice. Otherwise it would result in placing the tenant entirely at the mercy of the landlord who may act in a cunning manner and disappear in such a way that he cannot be approached by the tenant at all so as to give him an opportunity of offering payment. Further, we do not think that the law contemplates that, in cases where the landlord may be acting in. such a manner, the tenant would be placed under the heavy burden of proving by oral evidence that he had gone to the house of the landlord and had tendered payment which had been refused. The circumstances of this case make it clear that the tenant had fully complied with the requirements of the notice and, therefore, he was not liable to ejectment under Sec. 3(1) (a) of the U.P. (Temporary) Control of Rent and Eviction Act. We consequently allow the appeal, set aside the judgment of the learned single Judge and of the lower courts, and dismiss the suit for ejectment with costs in all the courts. Learned counsel for the respondent has urged that his suit included a claim for arrears of rent which has been decreed and at least costs in respect of that part of the suit should not be made payable by the respondent. We have already recorded the finding that all this litigation has resulted from the conduct of the respondent in trying to file a suit for ejectment and refusing to accept by reason of his alleged absence earlier from his house, and later by direct refusal, when the money order was again tendered to him. In the circumstances we think the respondent should pay the full costs in all the courts. Appeal allowed.