1. The petitioner here filed a suit against the Secretary of State for India in Council to recover Rs. 155-11-3. The facts which were undisputed were that on 24th July 1933 the petitioner sent through the Post Office, Tellicherry, a money order for Rs. 150 to the address of the Director, Royal Institute of Technology, Delhi. This money order was No. 3609. Having sent off the money order, the petitioner, fearing that the Institute was not a bona fide one, wished to stop payment of the money order and on 27th July 1933 requested the Post Master Tellicherry to send an express telegram to the Delhi Post Office to stop payment of the money order to the addressee and towards the expenses remitted Rs. 3-6-0. The Post Master, Tellicherry, accordingly sent an urgent telegram to the Delhi Post Office and there is no question at all as regards its receipt at Delhi. In spite of this however the Delhi Post Office paid the money over to the payee on 29th July 1933.
2. The petitioner then complained to the Postmaster. General, Madras, and received a reply stating that the money could not be recovered and refunded to the petitioner because the Post Office by reason of Rule 276, Post and Telegraph Guide, was not responsible for 'inability' or 'failure' to stop payment of the money order in compliance with the remitter's request. The petitioner replied to this letter contending that the rule referred to applied only to cases of 'inability' or 'failure' and not to a case of wilful refusal done fraudulently and collusively. He accordingly held the Secretary of State for India in Council responsible for all damages and costs which he might be put to and gave notice that legal proceedings would be instituted. In the District Munsif's Court the respondent denied liability relying upon Rule 276, Post and Telegraph Guide, which is a reproduction of Rule 100 made by the Governor-General in Council under the Indian Post Office Act (6 of 1898) and further contended that the payment was made through inadvertence. Rule 100 made under the Indian Post Office Act (6 of 1898) reads as follows:
The remitter of a money order which has not been paid may stop payment and require that the money be repaid to himself. This shall be done without additional charge on the remitter's applying in writing to the Post Office at which the money order was issued, and producing the receipt and giving full particulars of the payee's address as entered in the money order. In no case however shall the Post Office be responsible for inability or failure to stop payment of a money order in compliance with the remitter's request.
3. This rule is reproduced as Rule 276 in the Post and Telegraph Guide; and it was in accordance with that Rule that the petitioner applied to stop payment and that Rule alone in the Guide lays down the procedure for doing so. The learned District Munsif held that the respondent was not absolved from liability by reason of those Rules. He did this because he was of the opinion that this was not a case of 'inability' to stop payment of the money order nor had there been a 'failure' to stop payment. In his view the term 'failure' connotes an attempt to do a thing which is attended with no success and omission to do a thing will not ordinarily mean 'failure'. He refers to one of the meanings of the word 'fail' given in the Concise Oxford Dictionary, namely, 'not succeed in the attainment of; not succeed in doing or to do'. He then cites what he describes as the homely illustration of failure in an examination and says:
If a student omits to appear for an examination it is not a case of failure. If he sits for the examination and fails to pass, it is a case of failure. We are not to judge by the result.
4. With all due respect to the learned District Munsif, although omission to appear for an examination cannot fairly be described as failure to pass it, it is failure to sit for the examination and the homely illustration does not seem to me to be at all helpful. In my view, the learned District Munsif has given a meaning to the term which is altogether too narrow; and I am clearly of the opinion that an omission to do a thing is a 'failure' to do it and it is unnecessary that there should have been either an attempt or an intention to do it. For example, a creditor may write to his debtor demanding payment of the money owing by a certain date and threatening that on the failure of the debtor to do so within that time a suit will be filed. The debtor may have no intention at all of complying with his creditor's demand and does not attempt to do so. He has clearly ' failed' to comply with his creditor's demand; he has 'omitted' to do so; he has 'defaulted'.
5. The Concise Oxford Dictionary to which the learned District Munsif himself refers, gives the following meanings to the word 'fail': 'neglect; not remember or not choose'. The term ' failure' is given amongst other meanings: 'non-occurrence non-performance'; and some of the meanings given to the verb 'fail' in the Oxford Dictionary are ' to make default; to be a defaulter; to leave undone, omit to perform; to be at fault,' and amongst other meanings there given to 'failure' are: 'a failing to occur, be performed or be produced; an omitting to perform something due or required; default'. In my view, this was a 'failure' by the Delhi Post Office to stop payment of the money order within the meaning of Rule 100 made under the Indian Post Office Act (6 of 1898) and Rule 276, Post and Telegraph Guide. That being so, it is unnecessary to consider the other points which the learned District Munsif held in favour of the respondent which resulted in the dismissal of the suit, but nevertheles I refer to another point which the learned District Munsif found in favour of the petitioner, namely that there was a 'wilful refusal' by the Post Office to stop payment. He holds that the payment was not due to an inadvertent mistake, that it was not due as alleged in the plaint to fraud and collusion, no attempt having been made to prove the two latter, but he accepts the petitioner's case that this was a case of 'wilful refusal'. There was no evidence whatsoever to prove fraud and collusion nor was there any evidence at all to prove that the refusal was wilful and no reason appears to have been suggested for any wilful refusal. 'Wilful' means 'deliberate' and 'intentional' and even before me Mr. Balakrishnan in the course of his very strenuous and able argument was not able to suggest why the Post Master of the Delhi Post Office or any of his subordinates should intentionally refuse to stop payment. In my view, the failure to stop the payment was due to negligence at the most. The result is that although I disagree with the learned District Munsif's view upon the points already dealt with, which make it unnecessary for me to consider the points which he found in favour of the respondent, the lower Court's decree must be upheld and the civil revision petition dismissed with costs.