KAMALA BAI Vs. E RAJESWARI

JUDGEMENT

(1.) This is a revision filed by tenants arising out of eviction petition filed by the landlady on the ground of wilful default in payment of rents from November, 1991 to August, 1992 at the rate of Rs. 155/- per month. In the counter, the tenants pleaded that there is no fixed date for payment of rent, that they have been depositing rents in court pursuant to the order of the Rent Controller in R.C.3/92 and that they have not defaulted. Having lost in both the courts, the petitioners have come up with this revision.

(2.) Mr. N.V. Ranganadham, learned senior counsel for the petitioners contended that as the rent sent by tenants for the month of November, 1991 by money order was refused by the respondent and returned to the petitioners on 13-11-1991, they sent lawyer's notice dated 11-12-1991 despatched by registered post acknowledgement due on 12-12-1991 calling upon the landlady to nominate a bank so that they can deposit the rents in the bank. On the same day rents for November and December 1991 were sent by M.O. This notice and money order were refused and returned to the petitioners on 16-12-1991. Immediately the petitioners approached the Rent Controller by filing R.C. 3/92 on 30-12-1991 and obtained permission of the Court in LA. 6/92 on 20-10-1992 filed along with R.C. 3/92 to deposit the rents in Court. In accordance with this order, they have been paying the rents regularly and sometimes in advance also. Thus, Mr. Ranganadham submits that the tenants -have not committed any default. In support of his assertion he has filed C.M.P. 12594/95 to receive Exs. B-1 to B-4 as additional documents. The admission of additional evidence is opposed by the counsel for landlady on the ground that they are not genuine. In the affidavit it is stated that the documents were marked as Exs. P. 1 to P. 4 in R.C. 3/92 under Sec. 8 of the A.P. Buildings (Lease, Rent and Eviction) Control Act (for short the 'Act'). As the documents were already filed in the Court in another proceeding, I order the petition. Mere admission of documents does not mean that they are genuine (and) proved.

(3.) Ex. B-l is the money order coupon said to have been sent by one Ramakishan who is the deceased husband of the 1st petitioner. This bears postal endorsement 'refused by the payee'. No amount is mentioned in it and in order to show the amount, the learned counsel for petitioners relied on M.O. receipt No. 4662 which is written on the endorsement but which was however not filed. Mr. M. Rama Rao, learned counsel for the respondent- landlady contends that Ex.B-1 is suspicious as the sender is different, no amount is shown and it is also not probable since rent for November was not due by 13-11-91. The next document is Ex. B-2 dated 11-12-1991, office copy of the legal notice issued by the tenants to the landlady. In that notice it is alleged that as the landlady has failed to come for collection of the rent, in accordance with usual practice, for the month of November, 1991, the rent for November was sent by M.O. and as it was refused, the landlady was asked to nominate the Bank in which the tenant can deposit the rents from November, 1991, within 10 days from the date of receipt of the notice. Ex. B-4 is the postal envelope returned with the endorsement as 'refused'. Ex. B-3 is again M.O., coupon signed by one of the tenants for Rs, 310/- towards rents for the months of November and December, 1991 on 12-12-1991 which is said to have been refused by the landlady. Mr. M. Rama Rao vehemently contended that the alleged endorsements in Exs. B-3 and B-4. are manipulated and cannot be treated as true in the absence of examination of postman. He further submits that there is no reference to Ex. B-3 in Ex. B-4 or vice versa though they are alleged to have been issued simultaneously. It is also his contention that having issued notice to nominate the Bank, it is not in accordance with normal conduct to send rent immediately, more so, when rent for December, 1991 was due only by 5th January, 1992. It is also not probable that the rent for November, which was alleged to have been refused earlier would have been sent again along with rent for December, 1991. He has drawn my attention to the alleged left thumb impression of his client on Ex.B-3, which would not have been there, if she has refused. Mr. Rama Rao further submits that Ex.B-1 is not in accordance with proforma of M.O. coupon. Thus Exs. B-1, B-3 and B-4 cannot be accepted as genuine and accordingly it follows that the tenants have not paid rents for the period from November, 1991 onwards till 20-10-1992. I agree with the contention of Mr. Rama Rao. The burden of proving the endorsements of refusal is on tenant. The decision in Mdidu vs. Vilayat Hussain supports Mr. Rama Rao. Ex. B-1, Ex. B-3 and Ex. B-4 cannot be accepted as genuine in the absence of examination of postman as held in Jabir Hussain vs. Asgar Hussain and also in view of the inconsistent and suspicious features therein. Even assuming that Ex. B-1, Ex. B-3 and Ex. B-4 are true, let me now consider whether the tenants are in default.