AJIT KUMAR BHATTACHARYA Vs. SMT. RUKMANI DEVI

JUDGEMENT

(1.) THE only point for determination which arises in this appeal is whether the Defendant tenant complied with the provisions of Section 3(1)(a) of the U.P. (Temp.) Control of Rent and Eviction Act (hereinafter called the Act) and was protected by those provisions from eviction.

(2.) ADMITTEDLY a notice dated 3 -7 -1967 demanding certain arrears of rent and terminating the tenancy by the thirtieth day of the service of that notice was served on the Defendant tenant on 4 -7 -1967. On 17 -7 -1967 the Defendant tenant remitted the requisite arrears of rent by a money order correctly addressed to the Plaintiff landlord. However, the money order could not be delivered to the Plaintiff landlord and was returned to the Defendant tenant from the post office with the endorsement "Out of station. So left" bearing an initial dated 27 -7 -1967. The receipt granted by the post office dated 17 -7 -1967 of the sending of the money order is on record and so is the returned coupon of the money order containing the above said endorsement. The court below held that the Defendant tenant failed to comply with the provisions of Section 3(1)(a) of the Act and was liable to be evicted.

(3.) SRI G.C. Dwivedi, learned Counsel for the Defendant tenant, contended that a presumption arose Under Section 114 of the Evidence Act in favour of the Defendant tenant founded on the money order receipt and the coupon and the court below erred in law in rejecting the returned coupon of the money order from consideration as not having been proved. Shri V.D. Ojha, learned Counsel for the Plaintiff landlord, submitted that the money order coupon required formal proof by calling the postman who took the money order for delivery and made the endorsement in as much as the Plaintiff in his evidence had denied the fact that he was out of station on 27 -7 -1967. I think the contention of the learned Counsel for the Defendant tenant is sound. In the Full Bench case of Gangaram v. Smt. Phulwati, 1970 AWR 198, it has been held that it is not incumbent to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the other party denies service on him and the presumption Under Section 114 of the Evidence Act will be applicable. On the money order coupon the endorsement made to the effect "Out of station, so left" would be presumed to have been made by the postman in due course of the performance of his duty. The Defendant was not required to lead evidence to prove that the money order was actually taken on 27 -7 -1967 to the house of the Plaintiff by the postman and it was reported by the postman that the Plaintiff was out of station. A presumption would be drawn in favour of the Defendant that the postman actually took the money order to the house of the Plaintiff on 27 -7 -1967 and the money order could not be delivered to the Plaintiff as he was out of station and further that the endorsement on the money order was made by the postman. It was for the Plaintiff to rebut the presumption. A mere denial by him that he was actually in station would not be sufficient to rebut that presumption. Some further evidence was required by way of summoning of the post office records to prove that actually no money order was taken to the house of the Plaintiff for delivery on 27 -7 -1967. There is no such evidence on record. I, therefore, hold that a money order was taken to the house of the Plaintiff on 27 -7 -1967 with a view to deliver the arrears due to him within the prescribed period of one month.