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Rajaram (Dead) and ors. Vs. Ganpatlal Vaishya and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 72 of 1968
Judge
Reported inAIR1973MP268; 1973MPLJ510
ActsEvidence Act - Sections 114
AppellantRajaram (Dead) and ors.
RespondentGanpatlal Vaishya and anr.
Appellant AdvocateB.D. Gupta and ;J.R. Sharma, Advs.
Respondent AdvocateK.L. Mangal, Adv.
DispositionAppeal allowed
Cases ReferredShambhudayal v. Aliya Bi (supra
Excerpt:
.....the decision in s. the other remittances merely proved the conduct of the plaintiff, whereas this refusal clearly shows the underlined motive of the plaintiff, i. a tenant like the appellant, who had been sending so many money orders without deducting commission which he had paid, even when he had sent the same amount several times over, must be protected from eviction......(g) of the act.2. the suit was resisted by the appellants contending that they had been sending money orders one after another to the plaintiff, who went on refusing them. they sent a money order after receipt of notice also. that too came back from the post office with the endorsement of refusal as before. they further contended that the plaintiff did not genuinely require the suit accommodation for his business or residence.3. the trial court dismissed the suit on the second ground, but held in favour of the plaintiff on the first ground. in the result, it passed a decree for eviction. the defendants appealed. the plaintiff in the first appeal court again pressed his ground of genuine requirement. the first appeal court elaborately discussed the evidence on record on this point and.....
Judgment:

Shiv Dayal, J.

1. This second appeal arises from a suit for ejectment and arrears of rent inter alia on the grounds that the tenant did not pay or tender arrears of rent within one month of the receipt of notice of damand within the meaning of Section 4 (a) of the M. P. Accommodation Control Act, 1955 (hereinafter called the Act), which was then in force and which governs the suit, and also on the ground that the landlord genuinely requires the accommodation for his own business and residence within the meaning of Section 4 (1) (g) of the Act.

2. The suit was resisted by the appellants contending that they had been sending money orders one after another to the plaintiff, who went on refusing them. They sent a money order after receipt of notice also. That too came back from the post office with the endorsement of refusal as before. They further contended that the plaintiff did not genuinely require the suit accommodation for his business or residence.

3. The trial Court dismissed the suit on the second ground, but held in favour of the plaintiff on the first ground. In the result, it passed a decree for eviction. The defendants appealed. The plaintiff in the first appeal Court again pressed his ground of genuine requirement. The first appeal Court elaborately discussed the evidence on record on this point and held that the plaintiff neither genuinely required the accommodation for residence of himself or his family, nor did be genuinely require it for his business as he had sufficient and suitable accommodation both for business and residence. The first appeal Court observed in connection with both the parts of this contention that the plaintiff 'everywhere tried to suppress things which were likely to go against him.' It affirmed the judgment of the trial Court with regard to the ground of genuine requirement within the meaning of Clauses (g) and (h) of Section 4 (1) of the Act. On the first ground i. e. default in payment of rent in spite of notice, the first appeal Court affirmed the judgment of the trial Court and maintained the decree for eviction.

4. In this Court, the plaintiff again sought to support the decree for eviction on the ground of genuine requirement, but the learned counsel for the respondents could not show anything from the record to persuade me to take a different view of the matter. Both the Courts below have elaborately discussed the evidence of the parties and have shown that the plaintiff has a suitable accommodation for his cycle business which he carries on along with his son. So also he had sufficient accommodation for his residence and that for his family. It may be mentioned here that under the Act the ground under Clause (h) is not evailable to the landlord if he is in occupation of suitable non-residential, accommodation for his business, although it is not his own. Under the present Act (Accommodation Control Act, 1961) genuine requirement for business is a ground for eviction, if the landlord is not in occupation of non-residential accommodation of his own. The words 'of his own' were not there in Section 4 (1) (h) of the 1955 Act.

5. Adverting now to the defendants' contentions, the material facts are these. The appellants are tenants of non-residential accommodation at Rs. 40/- p. m. The plaintiff gave a notice of demand of rent on 14-12-1960, which was served on the appellants on 21-12-1960. In the suit, arrears of rent were claimed for the period from 1-7-1959 to 31-1-1961. It was averred that the defendants did not pay the arrears of rent in spite of notice.

6. The defence was that the plaintiff refused to accept rent whenever it was tendered after July 1, 1959. The defendants, therefore, remitted rent by money orders in August, September, October and December 1959, and January 1960. All these money orders were returned by the post office with the endorsement that the payee refused to accept them. The defendants were unnecessarily burdened with money order commission. Eventually after receipt of the plaintiff's notice, the defendants remitted Rs. 720/- as rent for 18 months (July 1959 to December, 1960) by money orders Nos. 9466 and 9670 dated 18-1-1961 (as a sum more than Rupees 600/- could not be remitted by one money order). But the plaintiff, on January 21, 1961, refused to accept them as is evident from the endorsement of the post office. The defendants also produced the acknowledgment parts of the earlier money order forms. All of them bear endorsements of refusal which purport to have been signed by different postmen from time to time (Ex D-7 to Ex. D-15).

7. The last two money orders are Ex. D-15 for Rs. 600/- and Ex. D-14 for Rs. 120/-. In the coupon, it is mentioned that these money orders were in payment of rent from July, 1959 to December, 1960, i.e. for 18 months. The endorsement is to the effect that Ganpatlal refused to accept them. They purport to have been signed by postman Ramcharan Achariya, They bear the date '21-1-1961'. Both the Courts below have held that tender of the money orders was not proved according to law because the postman was not examined by the defendants. Rajaram (defendant No. 1) examined himself and produced the acknowledgment and coupon parts of the money order forms (Exs. D-7 to D-15) and stated that these money orders were refused by the plaintiff.

8. The plaintiff on the other hand stated that these money orders were never offered to him. He admits that he received a money order dated July 11, 1959, but after that he did not receive any money order.

9. In my opinion, the Courts below were in error when they held that tender of rent was not proved because the postman was not examined. The object of Section 4, of the Act, which is the pivot provision of the law is that on the one hand tenants must be protected from eviction; on the other, the tenants must be compelled to continue to fulfil their obligations to pay rent and perform other duties. The main object of this section is to offer protection to the tenants. Restrictions have, therefore, been imposed on the rights of the landlord to eject his tenant. Under Clause (a) of Section 4 the policy of the law is clearly this. A tenant must be protected from eviction, but if he does not pay arrears of rent within one month in spite of service of a written notice of demand on him he loses the protection. From this it follows that where a tenant shows that he tendered rent, there is no default on his part. He must be protected against eviction.

10. I have always considered a remittance by money order (so as to reach the landlord within the time prescribed by law) as the surest and safest mode of payment and tender, when arrears of rent are demanded in a notice, laying a foundation for an eviction suit. Except where the landlord intimates in his demand notice to the tenant of a change in his address, a money order sent on the landlord's residential address or at the address of his business is good and sufficient tender, so that the tenant must be protected against his eviction. His handing over the amount of rent to the post office for being tendered to the landlord is the strongest evidence of his bona fides; the money goes out of his control; he cannot take it back from the post office.

Under Section 114 of the Evidence Act, a presumption must be made that in the ordinary course of business of the post office the money was given to the postman by the post office, for payment to the payee; and, that if it comes back with the endorsement 'refused' there should be presumption of truth in respect of such endorsement. It must naturally be presumed that the postman is not in any way interested in writing a false endorsement in case of a money order. Nor could it be imagined that he would write a false endorsement at the instance of the remitter, because the latter does not stand to gain anything thereby. The landlord may refuse to accept the money order with the object of creating a ground for eviction.

11. In the judgment of Mr. Justice Newaskar in Laxmi Narayan v. Susamal (Second Appeal No. 195 of 1965 Jabalpur decided on 3-9-65) to which I shall refer in detail a little later, the above view is fully supported. It is also supported in Hiralal v. Murlidhar, (1956 Madh Bha LJ 1185) decided by Mr. Justice Samvatsar (as he then was). There a money order was sent by tenant; the endorsement of the postman was that the addressee was not found; that endorsement was of a date within one month of the notice; previous payments of rent were also by money orders. It was observed :--

'It appears to me that the plaintiff had managed to evade receiving the money order on some pretext or other when it was taken to his house by the postman.'

32. In S. A. No. 195 of 1965, D/- 3-9-1965 (supra) the question was whether it was necessary for the tenant alleging remittance or arrears of rent by money order and its refusal by the landlord to examine the postman to prove the fact of refusal. Mr. Justice Newaskar applied the principle laid down in first appeal No. 44 of 1959 (Shambu-dayal v. Alia Bi, 1963 Jab LJ 85 (infra)). A distinction was sought to be drawn before him between the case of a registered letter and a money order. He held as follows :--

'In my opinion, the distinction sought to be drawn by the learned counsel is without substance. Both in the case of money order as well as a registered letter the fact of submitting either the letter or money order which is entered in a special register kept for the purpose at the post office and its subsequent dealing also noted as and when the reports are received. The presumption which is drawn in such a case is a part of general presumption of an initial act. It may or may not be possible to examine the postal peon, but that would not make the evidence with regard to the tender of the money order coupon as not relevant or untrue.'

and, on that basis, Mr. Justice Newaskar did not follow the view taken in Chhoteylal v. Bal Govind, 1962 MPLJ (SN) 288 (infra) on which reliance was placed before him. The decision of Mr. Justice Newaskar is dated September 3, 1965.

13. Learned counsel for the respondents relies on Babulal v. Tarachand, (S. A. No. 130 of 1965 Bench Gwalior, decided on 28-2-1966). In that case Mr. Justice Naik on fhe basis of his own view taken in Jankiram v. Damodhar, (AIR 1956 Nag 266) and also on Raja Udram v. Khanbeg, (AIR 1918 Nag 202) again held that it was necessary to examine the postman who may have tendered the money order. On going through this decision I find that attention of the learned Judge was not invited to either the Division Bench decision in 1963 Jab LJ 85 (infra) or to the decision of Mr. Justice Newaskar in S. A. No. 195 of 1965, D/- 3-9-1965 (Madh Pra) (supra) in which the Division Bench decision was held equally applicable to the case of a money order. There cannot be the slightest doubt that if these two decisions had been placed before him, he would have either followed them or would have referred the matter to a larger Bench, if he disagreed with them. Their Lordships of the Supreme Court made instructive observations in Lala Shri Bhagwan v. Ram Chand, (AIR 1965 SC 1767) as follows :--

'It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon, that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself.'

He would certainly not have decided the case on the basis of those two decisions which run counter to the Division Bench decision, and, therefore, must be deemed to have been overruled.

14. A similar question had arisen in respect of registered letters. The question was whether there would be a natural presumption that a communication properly addressed and posted must have reached the addressee and that if it is returned unserved as a result of refusal to receive it, bearing an endorsement to that effect, the addressee will be deemed to have received it and the sender will be deemed to have fulfilled his duty in the matter. In AIR 1918 Nag 202 (supra) the plaintiff's suit for ejectment of the defendants, on the allegation that then tenancy had been determined by a notice to quit under Section 79 Berar Land Revenue Code, had been dismissed on the ground that service of the notice sent by registered post was not sufficient proof when defendant denied having received the notice. There was an endorsement of refusal on the registered postcard. The dak peon was not called as a witness. The address of the addressee given on the postcard was vague. The learned Addl. J. C. upheld the view of the lower Court that as the defendant had denied the notice it was incumbent upon the plaintiff to call the postal peon to prove that the registered postcard was tendered and refused by the defendant.

'So also in Jankiram v. Damodar, (ATR 1956 Nag 266) Mr. Justice Naik had held as under:-- 'It is for the plaintiff to establish by proper evidence that the notice which has been returned undelivered to him by postal authorities was tendered personally to the defendant or to one of his family members or servants at his residence.'

Following the decision of Mr. Justice Naik (supra), it had been held in 1962 MPLJ (SN) 288 that it was necessary for the tenant to have examined the postal peon.

15. However, a contrary view was taken by a Division Bench consisting of Mr. Justice Golvalker and Mr. Justice Bhargava in 1963 Jab LJ 85 where it was held as follows:--

'It is well settled that unless contrary is established by reliable evidence, normal presumption is that a communication properly addressed and posted must have reached the addressee. Hence if it is returned unserved as a result of refusal to receive it and bearing an endorsement to that effect on the communication the addressee will be deemed to have received it and the sender will be deemed to have fulfilled his part of duty in the matter.'

16. It will thus be seen that-

(1) I am bound by the decision of the Division Bench in 1963 Jab LJ 85 (supra) where it has been held that unless contrary is established by reliable evidence, the normal presumption is that in case the letter is properly addressed and posted must have reached the addressee, and if it is returned bearing an endorsement of refusal to receive it, the addressee will be deemed to have received it and the sender will be deemed to have fulfilled his part of duty in the matter.

(2) I am bound to follow the decision of Mr. Justice Newaskar in S. A. No. 195 of 1965, D/- 3-9-1965 (MP) (supra) where it has been held that the decision Shambhudayal v. Aliya Bi (supra) equally applies to money orders.

(3) The combined effect of the above two decisions may be stated thus. Unless contrary is established by reliable evidence, normal presumption is that money remitted by money order properly addressed, must have reached the payee and if it is returned with an endorsement of refusal to accept the payment, it will be deemed that there has been sufficient tender and the remitter will be deemed to have fulfilled his part of duty in the matter.

(4) I must add that in the absence of a contract to the contrary, the remitter has no right to deduct money order commission; and that such tender must be within the statutory period, if any, prescribed for suchtender.

(5) Not only that I respectfully agree with Mr. Justice Newaskar in the view above stated, but I go a step further when I am of the opinion that the presumption to be made in the case of money orders is stronger than in case of registered letters. The reason is that in the case of a registered letter (for instance a notice demanding payment of arrears of rent) there is the possibility of suspicion that the sender (landlord) may have manoeuvred, in collusion with the postman, an endorsement of refusal so that the addressee (tenant) may remain in the dark and after the expiry of the statutory period (for payment) the sender (landlord) may enforce his right of ejectment. Thus, a mischievous endorsement of refusal is likely to seriously jeopardise substantive rights of the addressee (tenant). But in the case of money orders there is no such apprehension. If the remitter (tenant) manipulates, by conspiring with the postman, to get an endorsement of refusal of the payee, what is it that the remitter stands to gain? His liability to pay is not extinguished or diminished. The liability continues; what is more, he unnecessarily loses money order commission he paid to the post office.

(6) The earlier decisions in ATR 1918 Nag 202 and AIR 1956 Nag 266 ceased to be good law after the Division Bench decision in 1963 Jab LJ 85 (supra). The decision in 1962 MPLJ SN 288 was based on ATR 1956 Nag 266 (supra). The decision in S. A. No. 130 of 1965, D/- 28-2-1965 (Madh Pra) was also based on AIR 1956 Nag 266 (supra) and AIR 1918 Nag 202 (supra). Moreover, the attention of the learned Judge (who decided Babulal's case) S. A. No. 130 of 1965, D/- 28-2-1965 (Madh Pra) was not invited to the decision of the Division Bench in 1963 Jab LJ 85 (supra) nor to the decision in S. A. No. 195 of 1965, D/- 3-9-1965 (Madh Pra (supra), which had been rendered earlier. A Judge, sitting singly, is bound to follow earlier decision of a single Judge. If he finds himself unable to follow it, the only course open to him is to refer the question for decision by a larger Bench.

17. In the present case the position of remittances by the tenant to the landlord is as follows : --

(a) The plaintiff admits to have received by money order rent for the month of June, 1959.

(b) In August, 1959, the tenants remitted Rs. 40/- as rent for the month of July, 1959 by money order (Ex. D-9). It came back with the endorsement 'refused' dated August 20, 1959.

(c) Then, in the month of October the tenants remitted Rs. 120/- by money order, being rent for the months of July to September (Ex. D-10). That also came back with the endorsement 'refused'. It is dated October 7, 1959.

(d) Then, in the month of December, 1959, the tenants remitted Rs. 200/- by money order (Ex. D-11) being rent for the months of July to November, 1969. It came back with the endorsement 'Refused'. It is dated '12-12'.

(e) Then, in the month of January, 1960, the tenants remitted Rs. 240/- by money order, being rent for the months of July to December, 1959 (Ex. D-12). That also came back with the endorsement 'Refused', being the date January 7, 1960.

(f) The plaintiff gave a notice dated December 4, 1959 to the tenants demanding payment of arrears of rent from them and also asked them to vacate by January 31, 1959 (should be read as 1960) (Ex. D-4). The tenants in their reply dated January 22, 1960, stated that they had been remitting rent by money orders (details of which were given) but the plaintiff refused all of them. It was further stated in this reply that they had remitted Rs. 240/- on January 7, 1960. The defendants have filed postal acknowledgment card addressed to Shri Krishna Swaroop, Advocate, who had given notice to them. This acknowledgment bears the date January 27, 1960.

(g) Then, in the month of March, 1960, the defendants remitted Rs. 320/- as rent from July, 1959 to February, 1960 (Ex. D-13). That also was refused bearing date March 21, 1960.

(h) The last remittances which were made by money orders are for Rs. 600/- and Rupees 120/- (total Rs. 720/-). The coupon shows that the amount of Rs. 720/- was sent for the rent from July, 1959 to December, 1960 (18 months). The endorsement of refusal is dated January 21, 1961.

(i) The endorsements on the above money order forms (acknowledgment parts) purport to have been signed by different postmen.

(j) It will be fantastic to suppose that all these postmen had conspired with the defendants to write a false endorsement of refusal every time.

(k) It is admitted that the plaintiff's address written on all these money orders is correct. The last remittances, which are of the same date (as the amount exceeded Rs. 600/-) were made after the notice of demand was served on the appellants. They are crucial. The other remittances merely proved the conduct of the plaintiff, whereas this refusal clearly shows the underlined motive of the plaintiff, i. e. to create a ground for eviction. A tenant like the appellant, who had been sending so many money orders without deducting commission which he had paid, even when he had sent the same amount several times over, must be protected from eviction. He is not a tenant of the kind for whom Section 4 (1) (a) was enacted.

18. It is an argument that the date of tender (January 21, 1961) falls after one month of the receipt of the notice (December 21, 1960). This argument is not correct. For computing the time of one month December 21, 1960 will be excluded from computation. The period prescribed is 'one month', not 30 days. Therefore, computing from 22nd December, 1960, the refusal on January 21, 1961 was within one month.

19. The appeal is allowed. The judgments and decrees of the Courts below are set aside. The suit is dismissed with costs throughout.


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