N L MEHROTRA Vs. M A K FINCH

JUDGEMENT

(1.) This is a second appeal arising out of a suit for possession of a house which is said to be in the occupation of the Defendant-Appellant as a tenant.

(2.) It appears that a suit was instituted by the Plaintiff-Respondent against the Defendant on the allegations that his tenancy had been determined by a valid notice and that he had failed to vacate the premises. The Defendant contested the suit mainly on the ground that there had been no wilful default in the payment of rent after the notice was served on him on the 17th July, 1952, and that no cause of action accrued to the Plaintiff for the suit for ejectment. Both the Courts have found that the default was wilful and have decreed the suit for ejectment. The Defendant has now come up in second appeal.

(3.) It is not disputed that the Defendant was a tenant of the Plaintiff and was in the occupation of the premises in dispute and that some rent was in arrears in July, 1952. According to the Plaintiff the rent was in arrears from the 1st February, 1952 onwards and in the notice sent by the Plaintiff on the 14th July, 1952, and received by the Defendant on the 17th July, 1952, the Plaintiff made a demand for arrears of rent for five months amounting to Rs. 150 and asked the Defendant to pay up this amount within one month failing winch he was to vacate the premises by the 31st August, 1952. The Defendant, admittedly sent a telegraphic money-order for Rs. 150 on the 16th August, 1953, but this money-order was not accepted by the Plaintiff. The Defendant's case was that he had correctly addressed the money order and the Plaintiff failed to accept the money-order only to make good her cause of action for ejectment against the Defendant while the Plaintiff's case was that the money-order was not correctly addressed and as such she refused to accept it through her sister, who was actually present at the time when the money-order was tendered by the postal peon. The original money-order form prepared by the post office on receipt of telegraphic instructions was summoned from the post office and the two peons who went to deliver the telegraphic money-order were also produced on behalf of the Defendant. In the money-order form D.W. 1/1 it appears that the name of Niranjan Lal intervenes between the words "Mrs." and "Finch" although this name has been scored out. The two courts have considered the evidence produced by the Defendant as also this document in arriving at the conclusion that the money-order must have been addressed to one Mrs. Niranjan Lal Finch. Unfortunately none of the two courts seems to have considered the receipt given by the post office to the Defendant at the time when tendered the money to be transmitted by the telegraphic money-order. In this receipt the words "Mrs. Finch" are clearly mentioned and there is no intervening word "Niranjan Lal" in between the words "Mrs." and "Finch". In telegraphic money-orders the original forms tendered by the sender is not transmitted to the office of disbursement but only a telegraphic intimation of the address of the sender and of the payee is issued and a form is drawn up at the receiving post office for the purpose of delivery of the money-order. No doubt, the words "Niranjan Lal" which have been scored had appeared on the form thus prepared by the post office, but this does not mean that the sender held also made that mistake. In fact it was Niranjan Lal who sent this money-order and there seems to be no good reason to believe that he had put his own name as a part of the name of the payee, and if there was any such mistake it must have been the mistake of the post office, especially when the postal receipt granted to the Defendant clearly showed that the money order was addressed to. Mrs. Finch. I am unable, therefore, to accept the view taken by the two courts below that the money-order was not correctly addressed.