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Shiv NaraIn Chaudhary Vs. Naug and Company, Allahabad - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2406 of 1971
Judge
Reported inAIR1982All44
ActsCode of Civil Procedure (CPC) , 1908 - Order 30, Rule 10; Transfer of Property Act, 1882 - Sections 106; Evidence Act, 1872 - Sections 59 and 74
AppellantShiv NaraIn Chaudhary
RespondentNaug and Company, Allahabad
DispositionAppeal dismissed
Excerpt:
.....- objected that the notice served on company and not to tenant - notice served in commercial name valid - held, suit not defective. (ii) payment of arrears of rent - section 59 of evidence act, 1872 - rent money ordered - appellant's father refused to accept - superintendent of post-offices issued letter based on public records - admissible evidence to prove that rent was sent within reasonable time as demanded by landlord. - - it clearly envisages filing of a suit against a person who is carrying on business in any name treating it to be a firm......father. the appellate court further placed reliance on a letter issued by superintendent of post-offices on an application, filed by the respondents that the money order sent by him to the appellant's father was returned as 'refused'. therefore, it was returned to him and the matter was closed in the office. can it be said that this letter issued by the superintendent of post-offices was inadmissible in evidence reliance was placed on abdul halim khan v. raja saadat ali khan (air 1928 oudh 155) where a civil surgeon's expert opinion on official call from the district magistrate was held not to be an act or a record of his act as a public officer. this decision does not apply as in this case the money order had been sent through post-office. as it was not accepted by appellant's.....
Judgment:

R.M. Sahai, J.

1. In this plaintiff's second appeal, arising out of a suit for ejectment from the house in dispute let out in 1944, it has been found by the twp courts below that alterations made after 1947 did not result in bringing out a new construction. Therefore, provisions of Act III of 1947 were applicable to it. The finding being on question of fact has not rightly been seriously challenged on behalf of appellant.

2. Admittedly, one Qadir who was the owner of the premises in dispute entered into a contract of tenancy with the defendant in 1944. After he migrated to Pakistan it became evacuee property and the Custodian transferred its ownership to the plaintiffs father (since deceased). In the document of transfer an endorsement was made in favour of Naug and Company, the Commercial name in which business is being run by the defendants since the time of their, father. Rent has also been paid by Naug and Company. When it became in arrears of three months the appellant's father gave a notice Under Section 106 of the Transfer of Property Act and filed the suit for ejectment. One of the pleas raised was that tenancy being in the name of respondent's father the notice could not be served on Naug and Company and for the same reason the frame of suit was also defective. None of the courts accepted these objections and held that the suit was maintainable by virtue of Order XXX, Rule 10 C. P. C. Service of notice was also held to be sufficient. A number of decisions have been cited for respondents to support the judgment onthe defective frame of suit. An effort was also made to suggest that this provision applies only to firm, partnership business act. The argument does not appear to have any substance. It clearly envisages filing of a suit against a person who is carrying on business in any name treating it to be a firm. By fiction contained in the order the business is not converted into a firm or a partnership but it enables such business to be treated as an artificial person for the purposes of filing or defending a suit.

3. The principal question, however, is whether respondents committed any default. On this the two courts have differed. The appellate court found that after the receipt of notice the defendant within time sent the money order to the plaintiff, and, therefore, even if it did not reach the plaintiff it did not make any difference in law and it shall be deemed that as arrears of rent was tendered there was no default. In order to substantiate its plea the respondents had filed a receipt which contained the name of payee and the amount demanded. The post-man was also examined who stated on oath that a money order of the aforesaid amount was taken by him to the appellant's father but he refused to accept the same. His statement was disbelieved as the coupon which was filed in this case was denied by him to be the coupon which was taken by him to appellant's father. The appellate court further placed reliance on a letter issued by Superintendent of Post-Offices on an application, filed by the respondents that the money order sent by him to the appellant's father was returned as 'refused'. Therefore, it was returned to him and the matter was closed in the office. Can it be said that this letter issued by the Superintendent of Post-offices was inadmissible in evidence Reliance was placed on Abdul Halim Khan v. Raja Saadat Ali Khan (AIR 1928 Oudh 155) where a Civil Surgeon's expert opinion on official call from the District Magistrate was held not to be an act or a record of his act as a public officer. This decision does not apply as in this case the money order had been sent through Post-office. As it was not accepted by appellant's father it was returned to the respondent. Under the act the responsibility of accepting the money order delivering it to the person concerned andin case of refusal to return it to the sender is the responsibility of the Post-office. The entry of sending the money order, of its refusal and its return are to be made in the record maintained by the Post-office. It cannot be disputed that records maintained in the Post-office are public records. The entries in these records, therefore, can be produced in a court of law as a part of a public record. The respondent gave an application to the Superintendent of post-office about the money order sent by him to the appellant's father. It was on this application that the Superintendent of Post-offices sent the reply based on entries in the public record. It cannot, therefore, be said that the letter was inadmissible in evidence.

4. The other argument on inadmissibility was regarding the money order coupon paper No. 50 it is true that it does not contain the seal of Post-office. The Post-man also denied it to be the coupon which was taken by him for delivery to the appellant's father. It may be suspicious and may be ignored. This is exactly what the appellate court did. It did not place any reliance on it. Even if it may be assumed for a moment that the letter sent by Superintendent of post-offices could not be utilised the finding of the appellate court that the money order was sent within time based on the money order receipt and the evidence of defendant-respondent, cannot be said to be vitiated by any error of law. It is true the receipt by itself does not prove that the amount sent was the arrears of rent but the receipt along with statement does not leave any room for doubt that the amount sent was towards arrears of rent. In Man Mohan Chawla v. Jaswant Singh (1969 Ren CJ 334) (Delhi) it was held :

'That no presumption could arise by mere production of receipt that amount was sent to the landlord and to no other person.'

In this decision the presumption was refused to be drawn as the receipt did not contain the complete address of the landlord, No exception can be taken to it. But the question is whether where the tenant appears in the witness-box and states that on the date mentioned the amount demanded by the landlord was sent by money order and in support of it he produces the receipt it cannot be said that the sending ofmoney order or its tendering is not established. If the tenant would not have appeared in the witness-box the mere filing of the receipt could not have been sufficient. The decision, therefore, is of no help to the appellant.

5. It may not be out of place to mention that after the suit was decreed by the trial Court the respondent made an application before the appellate Court for summoning the entire documents from the postal department to establish that money order was sent on the date mentioned in the receipt. This application was allowed but unfortunately as the appellate Court while allowing the application and remanding the case, set aside the decree for arrears of rent also, this Court in F.A.F.O. No. 166 of 1965, decided on 2-1-1969 set aside the order and directed the Court to decide the appeal on merits. The respondent therefore, did whatever was possible on his part to prove that money order was tendered within time. In fact If was plaintiff who obstructed the production of clinching evidence, A fact may be proved by oral or documentary evidence. Even if no document would have been filed the Courts below could have decided one way or the other on the evidence led by the parties. The filing of receipt, coupon etc. is corroborative evidence to strengthen the statement made on oath. It is not the case that there was no evidence. The utmost that could be said was that the tenant should have taken precaution to produce the document which could conclusively establish that money was sent but as pointed above the mere non-production of all the documents or even the money order could not result in drawing an adverse inference against him. If the appellate Court believed the oral evidence which was supported by money order receipt and the letter of Superintendent of Post-offices it cannot be said that it committed any error of law and the finding of fact recorded by him is vitiated.

6. Even If it is assumed that money order did not reach the appellant's father it would not make any difference in law as if it was tendered within time it would amount to discharge of obligation on the part of respondents. In Bhika Lal v. Munna Lal : AIR1974All366 it was observed by a Full Bench of this Court (at pp. 370, 371):

'The principle deducible from these decisions is that where a creditor has authorised explicitly or impliedly payment by cheque through the Post-office and the debtor does despatch a cheque, the answers to the questions as to whose agent the Post-office is for the purposes of the transaction and as to what is the time and which is the place of payment are not dependent on the existence of a power in the remitter and drawer of the cheque to stop encashment thereof. In such an event unless by the exercise of the power the drawer of the cheque brings about the dishonour thereof the Post-office will be the creditor's agent and the time and place of payment will be the time and place of its posting.........'

The mere proof therefore that arrears of rent as demanded by the landlord was sent within time was sufficient in law to establish payment and the lower appellate court did not commit any error in dismissing the suit of the appellant.

7. In the result this second appeal fails and is dismissed with costs.


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