B.C. Misra, J.
(1) The appellant is a tenant judgment- debtor who has filed an appeal under section 39 of the Delhi Rent Control Act, 59 of 1958 (hereinafter referred to as the Act) against the appellate order of the Rent Control Tribunal dated 3rd December, 1975, by which the appeal has been dismissed and the order of the Additional Controller dated 31st October, 1975 has been affirmed; as a result the appellant has finally been held liable to be dispossessed in execution of the order for eviction which had already been passed.
(2) The material facts of the case lie in a narrow compass. The appellant is a tenant of the respondent in respect of shop No. 4231-32, Jogiwara, Nai Sarak, Delhi, on a rent of Rs. 30.00 per month. On 16th October, 1974 the respondent after serving the requisite statutory notice, instituted a petition for eviction against the appellant, on the ground of non-payment of rent and subletting, specified in clauses (a) and (b) of the proviso to sub-section (1) of section 14 of the Act. The ground of unlawful subletting was given up by the respondent while the ground of non-payment of rent succeeded and the Additional Controller passed a conditional order of eviction. It was to this effect : Out of the rent due, a sum of Rs. 352.50 had already been paid and the balance of Rs. 50.00 for the period ending 31st December, 1974 along with rent of Rs. 30.00 for January, 1975 (total Rs. 80.00 ) was ordered to be paid or deposited within a period of one month from the date of the order and it was directed that if the appellaru paid or/deposited the same, the petition for eviction would stand dismissed, but if he failed to pay it the appellant would be liable to eviction. This order was passed on 28th January, 1975.
(3) On 26th February, 1975 the appellant judgment debtor alleges that he sent a money order for Rs. 80.00 to the respondent at his residential address. By the way, it may be noticed that the respondent is a practicing lawyer, who would normally be not found at his house on the days the court is working. The money order was, however, redirected to his office in the court and the same was tendered to the respondent on 3rd March, 1975 and was refused by him on the ground that the tender was beyond time. The money order was returned to the appellant on 10th March, 1975. Subsequcntly, on 13th March, 1975 the appellant made the deposit with the Controller under section 27 of the Act. The question that arises for determination is whether the tender of the amount by money order on 26th February, 1975 or thereabout, constituted a proper tender and a valid discharge of the obligation under the order for eviction that had been passed against the appellant. The Additional Controller as well as the appellate Tribunal have found against the appellant and held that the appellant had not complied with the order and, thereforee, rendered himself liable to be dispossessed in execution of the order for eviction.
(4) Feeling aggrieved the appellant has filed this appeal and Mr. S. N. Chopra, Advocate, has appeared to support it. Mr. Chopra has contended that the rent authorities below ought to have held that the tender in dispute by money order was valid and the appellant had fulfillled the condition of the order and so was not liable to he evicted.
(5) I have considered the submissions of Mr. Chopra and am unable to accept them and I am of the view that the order of the Rent Control Tribunal is legally correct. The order for eviction passed on 28th January, 1975 reads as follows :
'Idirect the respondent to pay or deposit the sum of Rs. 50.00 for the period ending 31-12-74 along with rent of Rs 30.00 for January, 75 total Rs. 80.00 within one month of this order. If the respondent makes this payment or deposit, the petition shall stand dismissed under sec. 15(6). If he fails to make the deposit the respondent shall be liable to eviction under sec. 14(1)(a) after one month and shall vacate the premises and put the petitioner in possession.'
(6) It is significant that direction of the Additional Controller was to pay to the respondent or deposit with the Controller. The direction strictly did not envisage a tender by money order. This by itself would, however not preclude the judgment-debtor from remitting the amount by money order. But he does so at his own risk and if the postal authorities for any reason be unable to pay the amount to the decree- holder within the stipulated period, then the consequences must fall on the judgment-debtor. The Post Office is ordinarily the agent of the remitter. Section 44(1) of the Post Office Act provides that the remitter may withdraw the money order under certain specified, conditions and if the money order is not delivered, it would be returned to the remitter. This shows that the Post Office acts under instructions of the remitter.
(7) In Commissioner of Income-tax v. Messrs Ogale Glass Works Ltd. : 25ITR259(SC) . it was held as follows :
'THEREcan be no doubt that as between the sender and the addressee it is the request of the addressee that the cheque be sent by post that makes the post office the agent of the addressee..................if there be no such request, express or implied then the delivery of the letter or the cheque to the post office is delivery to the agent of the sender himself.'
INHarbhagwan Ram Lal v. Punjab &Pepsu; Financiers Ltd., , the facts were that there was a compromise decree which required the judgment-debtor to pay the decree-holder certain amount by 10th October, 1966. The judgment-debtor remitted the amount by money order on 8th October, 1966 and the question arose whether handing over the amount to the post office on that date amounted to its payment to the decree-holder on the said date or not. The court following the decision in Kirloskar Brs. Ltd. v. Commissioner of Income-tax : AIR1952Bom306 , Raja Ram v. Bisram, : AIR1960All747 , and Commissioner of Income-tax v. M/s. Ogale Glass Works, : 25ITR259(SC) , held that there was neither a stipulation in the compromise decree tha,t the amount could be sent by money order, nor the decree-holder specifically instructed the judgment-debtor to remit it through a money order. Consequently, it could not be said that the Post Office was the agent of the decree- holder and, thereforee, the payment had not been made to the decree- holder by the stipulated time.
(8) In Raja Ram v. Bisram, : AIR1960All747 , the compromise decree provided that if the judgment-debtor paid into court a certain lesser amount within one month of the order the entire decretal amount would be deemed to be satisfied, but in default of payment as aforesaid, the decree-holder would be entitled to execute the decree for the full amount and costs. The judgment-debtor remitted the stipulated amount by postal money order one day before the stipulated date, which was received by the court three days later. The decree-holder treating this as a default sought to execute the decree for the full amount. The court held that the post office could not be held to be the agent of the court in the instant case and consequently, the handing over of the money order to the post office failed to satisfy the requirement of paying the amount into court as was required by the decree.
(9) Mr. Chopra has relied upon a Full Bench decision of the High Court of Allahabad) in Bikha Lal v. Munna Lal, : AIR1974All366 , where the court observed as follows :
'WHEREthe tenant had an implied authority from the landlord to pay the amount by means of a money order, as soon as the tenant handed over the amount to the post office, to be remitted by money order, he was discharged from his obligation in that respect. 'The tenant had no control over the post office and if there was any delay in transit, the tenant cannot be held responsible for it and the landlord cannot be heard to complain about it. The tenant could not be said to have committed a default under section 3(l)(a) in respect of the payment of rent which he sent to the plaintiffs-landlords by a money order well within time but which had reached the landlords after the expiry of thirty days.
If there is an express or implied request by the landlord for payment of the rent, through a money order, the payment to the post office is payment to the landlord unless by subsequent action under section 44 of the Post Office Act the remitter cancels the money order. In such an event the payment shall stand thwarted by a subsequent act and shall be deemed never to have been made.
ITcannot be said that because of section 44(1) of the Post Office Act the post office must necessarily be treated as the agent of the remitter and in no case of the payee.
If the circumstances so warrant, the post office may in a given case, be treated as a common agent both of the creditor as well as the debtor. The legal concept of a common agent of both parties to a transaction is not without judicial precedent. Thus assuming that by reason of section 44(1) of the Post Office Act the post office is the statutory agent of the tenant, it can still be held to be the agent of the creditor also provided the circumstances of the case justify that inference.'
(10) In my opinion, the rule of law is that the Post Office is normally the agent of the remitter and any person who chooses to use the agency of the Post Office for remitting money does so at his own risk. However, in case the payee either expressly or impliedly requests the remission by money order, he may constitute the Post Office as his own agent or in some circumstances, the Post Office may properly be treated as the common agent of both the parties.
(11) In the instant case, however, both the rent control authorities have found that the Post Office was the agent of the appellant and there was nothing on record to show that the respondent had authorised the remission of the amount by money order. The decision of the authorities below is legally correct. The direction in the matter for eviction was to pay or deposit the amount and there was no express direction for remission by money order, nor is there any evidence or material on record to show that the respondent had expressly or impliedly requested remission of the amount ordered by the order of eviction to be sent to him by money order. As such, it is not possible to sustain the submission of the counsel for the appellant that in the instant case, the Post Office may be treated as the agent of the respondent or agent of both. The appellant having obtained an order on 28th January, 1975 to pay the amount within the period of one month, chose to delay the making of the payment till the last minute and then chose a rather dubious method by sending through money order, although it was easy for him to deposit with the Controller, which he did later on. Again the appellant has sent the money order directly to the residential address, while it is common knowledge that the lawyers are, during the courts hours, ordinarily not found at their residences during the period the money orders are tendered. There is no evidence on record to show that the amount of the money order was tendered to the respondent on 27th or 28th February, 1975 within the stipulated time. In the absence of any such evidence, the finding of the Tribunal cannot be said to suffer from any legal infirmity and must be affirmed.
(12) Mr. Chopra has lastly argued that the case may be remanded the Additional Controller for further enquiry as to whether the money order had in fact been tendered to the respondent on the 27th or 28th February, 1975. I am not inclined to accept this request, since any evidence on which the appellant sought reliance must be produced in the court of first instance, or if for any reason the appellant wanted additional evidence to be produced, the proper forum for making such request was the lower appellate court. The second appeal under section 39 of the Act is confined to determination of substantial question of law and the findings of fact arrived at by the Tribunal are binding on this court. Hence the request for remand is rejected.
(13) As a result, I find that there is no force in the appeal and dismiss the same. But, in the circumstances of the case the parties are left to bear their respective costs.