M.N. Shukla, J.
1. This is a plaintiffs second appeal arising out of a suit for ejectment and arrears of rent. The suit was decreed by the trial court but the decree was modified in appeal to the extent that the decree for ejectment was set aside. Aggrieved by the same the plaintiff landlady has preferred this second appeal.
2. The material facts necessary to appreciate the controversy between the parties are that the defendant was a tenant in the western shop in suit situate in the city of Moradabad on a monthly rent of Rs. 3. It was owned by the plaintiff and the rent was alleged to have fallen in arrears for the period 1-1-1961 to 31-3-1962 amounting to Rs. 83.75 paise. The landlady sent a composite notice of demand and termination of tenancy (Exhibit 12) on 23-4-1962 to the tenant, which was admittedly served on the respondent on 24-4-1962. According to the plaintiff the rent claimed as arrears in the notice was not tendered within one month from the date of the service of the notice and consequently she was entitled to eject the defendant.
3. The defence, in short, was that the amount of arrears being Rs. 65 only was remitted by money order on 18-5-1962 by the defendant but the same was refused by the plaintiff with ulterior motive and the money order was returned to the defendant after one month. Thus, the defendant having tendered the amount within one month of the date of the service of the notice of demand, there was sufficient compliance with the provisions of Section 3 (1) (a) of U. P. Act No. III of 1947, and he was not liable to be ejected.
4. The short question on which the decision of this case must rest is as to whether the amount of money remitted by money order on 18-5-1962 was actually tendered to the plaintiff or her agent within the period of notice. The crucial date for this purpose was 24-5-1962. It may be noted that now there is no controversy between the parties that the actual amount of arrears of rent was a sum of Rs. 65/- only.
5. So far as the oral evidence in the case is concerned, the landlady Smt. Parmeshwari Devi examined herself as (P. W. 1). She deposed that she did not receive the defendant's money order and that she was in Gurgaon from the 2nd of May, 1962, to 26/27th May, 1962, that when she returned from Gurgaon her husband told her that the postman came to tender the amount of money order but he had returned the same and apprised the postman of her Gurgaon address where she was at that time staying. The landlady's husband was not examined on behalf of the plaintiff.
6. So far as the oral evidence of the defendant is concerned, he examined himself and merely stated that he had remitted the amount of arrears of rent on 18-5-1962 and the same was tendered within the period of notice but it was refused by the husband of the land lady. The precise date of the tender to the plaintiff's husband and his refusal thereof is not known, and this has been the cause of the major difficulty in the present case. The difficulty could have been adequately resolved either by the tenant examining the postman or the landlady examining her husband to depose about the exact date of the tender made to him. But curiously enough, none of these two modes was adopted by the parties to fix the date of the tender and the refusal. Even in the plaintiff's deposition there was no indication of the actual date on which the amount remitted by money order was offered by the postman to the plaintiff's husband and refused by him. It may be added that the case has been argued by the learned counsel for the respondent on the footing that the plaintiff's husband may for the purpose of the case be regarded as the landlady's agent competent to accept rent on her behalf. The contention of the learned counsel for the appellant is that there was no evidence to establish that the rent was tendered to the plaintiff's husband within the period of notice and consequently the defendant had failed to comply with the provisions of Section 3 (1) (a) of U. P. Act No. III of 1947 and rendered himself liable for eviction.
7. In such circumstances the only mode of arriving at a finding with regard to the date of tender is to take into consideration whatever circumstantial evidence may be available on record and also rely on such presumptions of law as can be legitimately raised in favour of or against the parties. The only relevant document which is on record is the money order coupon which contains three endorsements. Firstly, on one side of the coupon there are the endorsements dated the 7th June, 1962 and 11th June, 1962, which are in substance to the effect that the payee could not be found. The reverse of the coupon contains the third endorsement 'Refused' and bears a certain date which defies all attempts to decipher it. It was contended for the appellant that there was no evidence led on behalf of the defendant as to the actual date of the tender of the money. My attention was also drawn to an admission made by the defendant that he himself did not accompany the postman nor was he personally aware of the date of the tender but he had received information from the postman. It was emphasised that the burden lay on the tenant to prove the tender of money and since the postman was not produced, the presumption must be drawn against the tenant that he failed to offer the amount of arrears within the period of notice. In this connection reliance was placed on a decision of Dhavan, J., in Jodha v. Ajodhya Prasad, 1967 All LJ 491. It was observed in that case that the tenant must prove that the remittance reached the landlord before the expiry of the period of notice and the post office being the remitters agent, its negligence could not be used as defence by the tenant. That case, however, is distinguishable inasmuch as there the money order coupon clearly mentioned the date of the endorsement of 'refusal' which was subsequent to the expiry of the period of notice and there was no vagueness about it. In those circumstances it was held that the tenant could not be exonerated of his liability by the mere fact of the remittance of the amount of arrears, and on account of the delay for which he was not responsible and was caused by the postal authorities in the process of transit. That proposition of law is by itself unexceptionable but in the instant case the date of refusal is not clear from the endorsement on the money order. Therefore, different considerations would apply to the decision of the controversy in the present case, and the other authorities also cited on behalf of the appellant, (see 1960 All WR (HC) 379 = (AIR 1960 All 747) and 1968 All WR (HC) 726) would not assist her case.
8. It is no doubt true that remittance by itself would not wipe out the liability of a defaulting tenant for eviction. It is further necessary that he must prove that the amount remitted was actually tendered to the landlord within the period of notice. But in the sphere of proving the actual tender the presumptions of law cannot be ruled out. A tenant may prove the date of tender by direct or circumstantial evidence, or he may fall back upon presumptions of law. What was emphasised on behalf of the respondent was that it was common ground that the parties were at the relevant time living in the same city i.e., Moradabad and, in fact, residing in the same house and that the rent in arrears was remitted by money order on 18-5-1962. In these circumstances it was submitted by the learned counsel for the respondent that a presumption should be drawn in law that regard being had to the common course of natural events the money order must have been tendered locally within a day or two. I am inclined to agree with, this submission of the learned counsel.
9. There is ample authority of this Court to the effect that where either a notice has been despatched for service on a local addressee or an amount has been remitted by money order for local delivery, a presumption of prompt service or tender may be ordinarily raised, even though the exact time of the delivery or the tender cannot be ascertained. See Smt. Janno v. Gaja Singh, 1966 All LJ 424 and Zareef Khan v. Mukhtar Ahmad, 1964 All LJ 148. In the latter case which affords the closest parallel to the one before me, it was ruled that this presumption was rebuttable and must be rebutted by the landlord if he wanted to establish that the bar against ejectment had been lifted in his case. It was observed by Dhavan, J., (at page 153) as follows:
'The onus being on the landlord to establish that the tenants were in arrears for more than three months at the precise moment when the demand was served on them, he had to rebut the presumption that the post office followed the ordinary course of business and tendered him the money order on the next day after it was handed in for delivery to the addressee. The exact time of tender and refusal was within his knowledge but he chose to deny that he ever received it. Therefore, he did not rebut the presumption and failed to establish that the tenants were in arrears of rent for the minimum period prescribed under Clause (a) when the notice of demand was served on them.'
The conspicuous feature of the present case is that the landlady did not resort to the easiest and most natural mode of rebutting this presumption which was available to her. She could have examined her husband who was alleged to have returned the money order which was presented to him by the postman concerned and he would have been the most competent person to depose about the exact date on which such tender was made to him. He has not come in the witness box and consequently the landlady has failed to rebut the presumption which must in my opinion be drawn in favour of the tenant in the context of the facts of the present case. I am not inclined to lay much store by the fact that the postman was not examined on behalf of the tenant. As I have already indicated, the parties resided in the same city and shared the same house and the presumption in the first instance was overwhelmingly in favour of the defendant. Since that could not be rebutted by the landlady I have no option but to endorse the view expressed by the Court below that the respondent had tendered the amount within the required period and had not incurred the liability under Section 3 (1) (a) of U. P. Act No. III of 1947.
10. Lastly, it was vehemently argued by the appellant's counsel that the earliest endorsement on the money order coupon was dated 7-6-1962 which definitely indicated that the tender of the amount was not made by the postman earlier than 7-6-1962. The trial Court hazarded the view that the endorsement of 'refusal' appeared to have been made on some date after 7-6-1962. Since the date of refusal was not decipherable, I am unable to comprehend as to how the trial Court could assume that the refusal must have been posterior to 7-6-1962. The suggestion made on behalf of the respondent's counsel was that it was very likely that the tender of the money order was made on 19-5-1962 to the landlady's husband and when the latter refused to accept it and disclosed the Gurgaon address of the landlady, the money order was again sought to be tendered to her at Gurgaon on 7th and 11th of June, 1962, though on none of the two dates she could be actually met. The endorsements of these two dates were in substance that the payee had gone elsewhere. The endorsement dated 11-6-1962 significantly refers to Gurgaon address which makes it highly probable that the tender was again made on the aforesaid two dates at Gurgaon. Thus, the suggestion of the respondent with regard to the tender of the amount remitted is compatible with such material as is found on the record.
11. Before parting with the case I would like to observe that the position would have been very much different if the exact date of the refusal of the money order could be precisely ascertained. In that event the rule enunciated in the cases relied upon by the learned counsel for the appellant namely that the post office is the agent of the tenant and delay or negligence by the post office is that of the tenant's agent, would have been clearly attracted. But the decisive factor in the instant case has been the failure of the landlady to prove the date of refusal of the money order.
12. Thus, to sum up, where the service of notice of demand of arrears of rent on the tenant is either admitted or proved and it is also established that the amount was remitted about a week before the expiry of the crucial date and it is not disputed that the parties reside not only in the same city but in different portions of the same house, the tenant is entitled to the benefit of the presumption arising under Section 114 of the Indian Evidence Act. The Court must ordinarily presume that the normal course of conduct was followed and the amount remitted by money order was tendered to the addressee or his agent prior to the expiry of the period of notice.
13. For these reasons this appeal is dismissed but no order is made as to costs.