AMIRUL HASAN Vs. MOHAMMAD SHAFI AND OTHERS

JUDGEMENT

(1.) HEARD Learned Counsel for the parties. This is tenant's writ petition. Original landlord -respondent No. 1 Mohd. Shafi since deceased and survived by legal representatives filed suit for eviction against tenant -petitioner in the form of S.C.C. Suit No. 643 of 1984. In the plaint of the suit, it was pleaded that tenant had not paid the rent since 1.4.1982 inspite of notice of demand of rent and termination of tenancy dated 23.6.1984. Admitted rate of rent is Rs. 15/ - per month. It was also pleaded in the plaint that tenant had sublet the house to respondent No. 2 -Khalikur Rahman who is tenant's son in law. Tenant pleaded that after receiving the notice he sent the rent through money order within one month which was refused hence he deposited the same under section 30 of U.P. Act No. 13 of 1972. Landlord himself appeared as witness. He gave only two lines statement English translation of which is quoted below:

(2.) TENANT did not cross -examine the said witness. Trial Court/S.C.C. Kanpur, through judgment and decree dated 23.9.1985 dismissed the suit for eviction. Against the said judgment and decree landlord -respondent No. 1 filed S.C.C. Revision No. 146 of 1985. VIth A.D.J., Kanpur Nagar through judgment and order dated 16.10.1989 allowed the revision, set aside the judgment and decree passed by the Trial Court and decreed the suit for eviction and recovery of arrears of rent hence this writ petition.

(3.) IN para 7 of its judgment Revisional Court has held that in order to prove his plea the rent had been sent through money order after receipt of notice on 23.7.1984, money order receipt had already been filed by the tenant before the Trial Court. Revisional Court further observed that money order coupon containing the endorsement of refusal by the landlord had been filed in revision after seeking permission under Order XLI, Rule 27, C.P.C. as additional evidence. Revisional Court did not this believe the version of the tenant that landlord had refused the money order. Even otherwise it was fully proved on record by money order receipt and coupon containing refusal. It has been held in a Full Bench authority of this Court in Indrasani v. Din Ilahi : 1968 AWR 167, followed in another full Bench authority G. Singh v. A.D.J., 2000 (40) ALR 405, that in case rent sent through money order is refused by the landlord then tenant does not remain in arrears of rent even though rent remains in arrears.