OM PRAKASH Vs. VAISH DHARAMSHALA SABHA AND OTHERS

JUDGEMENT

(1.) THE petitioner is a tenant of the shop situate in the premises of Vaish Dharmshala, Qasba Sisauli, Muzaffarnagar on a monthly rent of Rs. 15/ - of which the respondent No. 1 is the owner and landlord. S.C.C. Suit No. 18 of 1984 was filed by the landlord against the petitioner for ejectment and recovery of arrears of rent and damages on the plea that the defendant -tenant is in arrears of rent since 1st of January, 1983 and has failed to pay it in spite of notice of demand and termination of tenancy. By means of the notice dated 8th of December, 1983 which was received by petitioner on 10th of December, 1983, the landlord -respondent demanded arrears of rent from the tenant since 1st of January, 1983. The suit was contested on the pleas inter alia that the tenant has been paying the rent to the landlord and offered the rent to the landlord in response to the notice dated 1st of January, 1983 but the same was refused. The rent was sent by money order which was returned by the Postal Department with the endorsement of refusal. It was deposited under section 30(2) of the U.P. Act No. 13 of 1972 in Misc. Case No. 150 of 1983. The petitioner has been depositing the rent in the said miscellaneous case and there is no default. The Trial Court by its judgment and decree dated 22nd of August, 1986 decreed the suit for ejectment, recovery of arrears of rent amounting to Rs. 183.75 and damages at the rate of Rs. 15/ - per month. The said decree has been confirmed in S.C.C. Revision No. 57 of 1986. Feeling aggrieved by the aforesaid two judgments and orders the present writ petition has been filed by the tenant.

(2.) THE only question raised in the present writ petition is as to whether the petitioner -tenant can be held defaulter in payment of rent within the meaning of section 20(2)(a) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act of 1972.

(3.) UNDER Issue No. 2 the Trial Court examined the question of default in payment of rent by the defendant -tenant (petitioner). There is no dispute between the parties that the petitioner has paid rent up to December, 1982 against the receipt issued by the landlord. The contention of the petitioner that before making deposit of rent in Misc. Case No. 150 of 1983, he offered rent to the employee of the trust and after their refusal the same was sent by the money order which was returned with the endorsement of refusal, was not accepted by the two Courts below on the short ground that the deposit was not made under section 30 of the Act in accordance with law. It is well established that a deposit under section 30 of the Act can be validly made only when there is refusal to accept the rent by the landlord. Thus, the question which now falls is as to whether valid deposit was made by the tenant -petitioner in Misc. Case No. 150 of 1983 or not. The P.W. 1 and P.W. 2, the witnesses of the plaintiff -landlord denied in their deposition that the money order was offered to them and they ever refused to accept the same. In this state of affair, the Courts below proceeded to hold that valid deposit was not made in the Case No. 150 of 1983 as there was no refusal on the part of the landlord to accept it. The said approach of the Courts below needs examination. It is not in dispute that the rent was sent through two money orders. Further, it is not in dispute that these money orders were returned with the endorsement of refusal made by the postman. It has not been disputed by the landlord that the money orders were not sent at the correct address of the landlord. A postman is a Government servant and there is a presumption of correctness though rebuttable for an act performed by a Government servant in discharge of his official duty. In order words, a presumption of correctness is attached in the face of endorsement 'refusal' that money order was refused by the addressee. The burden was, thus, upon the landlord rebut it by cogent evidence. Mere denial by the P.W. 1 and P.W. 2 will not shift the burden on the tenant. Both the Courts below have approached the case with a wrong angle and misdirected themselves while holding that the burden was upon the tenant to establish that there was refusal of rent tendered through money order. In a Full Bench judgment of this Court in Ganga Ram v. Smt. Phoolwati AIR 1970 Alld. 446, it is held that it is not necessary to produce and examine the postman to prove the endorsement of refusal. The controversy in regard to presumption has been considered by the Apex Court in Anil Kumar v. Nanak Chandra Verma : AIR 1990 SC 1215, and taking into account it has been held that bare denial on oath the denying tender and refusal to accept the delivery is not sufficient to rebut presumption. The said view has been followed by this Court in Nanhey Khan v. Ist Additional District Judge, Farrukhabad : 2000 (39) ALR 293. In my view, the controversy stands concluded by the aforesaid judgments of the Apex Court as well as of this Court. It follows, therefore, that the findings of the two Courts below that the tenant was at default in paying the rent or depositing under section 30 of the Act was not valid, cannot be sustained. It is held that the deposit made by the tenant in the facts and circumstances of the case in Misc. Case No. 150 of 1983 was a valid deposit and finding to contrary is hereby reversed. Thus, no decree for ejectment, recovery of arrears of rent and damages could validly be passed against the petitioners.