JUDGMENT S.S. Dhavan, J. - This is a tenants second appeal from the decision of the Civil Judge, Allahabad decreeing the landlords' suit for their ejectment. It raises several questions of law involving the interpretation of Clause (a) of sub-Section (1) of Section 3 of the U.P. Control of Rent and Eviction Act. 2. The material facts are these. The defendants appellants were the tenants of a house in Allahabad known as no. 4 Tazia Kalan of which the plaintiff respondent Mukhtar Ahmad is the owner and landlord. The parties reside in the same postal area of the city. The rent was Rs. 17/3/- per month, the tenancy commencing from the 12th day of the calendar month. The plaintiff alleged that the defendants had sublet the accommodation without his consent, caused material damage to the house, and defaulted in payment of rent and he had obtained the permission of the District Magistrate to eject them. The permission under Section 3 was set aside by the Commissioner and the allegation about subletting and causing damage was disbelieved by both the Courts below, and the only question in this appeal is whether there was any default in rent. The plaintiff alleged that eleven months' rent from 12th August 1954 had not been paid and on 13th July 1955 he sent by registered post a notice of demand for Rs. 193/11/- which the tenants failed to pay within the prescribed period of one month. He then terminated the tenancy and filed the present suit for ejectment. The defendants resisted the suit and denied that they had sub-let or damaged the accommodation or committed any default in payment of rent. They alleged that they had paid certain municipal taxes on behalf of the landlord which should have been adjusted, and that they regularly remitted the rent which was always refused by the landlord, and then deposited in Court under Section 7-C and that their final remittance was also refused by the landlord. 3. The trial court held that the defendant had not sub-let the accommodation nor committed any default in payment of rent and dismissed the suit for ejectment. 3. The trial court held that the defendant had not sub-let the accommodation nor committed any default in payment of rent and dismissed the suit for ejectment. On appeal by the landlord the appellate Judge confirmed the finding that there had been no sub-letting and no damage to the accommodation and accepted the version of the defendant-appellants that on the date when the landlord sent his notice of demand a sum of Rs. 92/11/- only was due to him and he refused a Money Order for Rs. 70/- remitted by the defendants on 14th July 1955. But nevertheless he adjudged the defendants defaulters because they did not tender the balance of Rs. 22/11/- within one month of service of notice of demand. He allowed the appeal and decreed the suit for ejectment. The defendants have come to this Court in Second appeal. 4. It is necessary to state a few additional facts for a proper understanding of the case of each party and the question of law in this appeal. It is common ground that the respondent landlord applied for the permission of the District Magistrate under Section 3 of the Control of Rent and Eviction Act to eject the appellants. The application was granted on 21-3-1955 and the present suit for ejectment was filed on 9-9-1955. The order granting permission was set aside by the Commissioner but the suit for ejectment was maintained on the grounds of illegal sub-letting, damage to the house, and default in payment of rent. As stated above, both the courts below have disbelieved the landlords' story of subletting and damage to the accommodation. The trial court held that the appellants had not failed to pay the rent because their remittance had been refused by the landlord and they wrote to him even after his refusal that they were willing to pay the rent and asked him either to collect the rent from them or assure them that it would not be refused if they remitted it again. The appellate judge reversed this finding and adjudged the appellants defaulters because they had not paid within a month of demand the balance of the rent due from them. The appellants challenge the correctness of the finding. 5. The concurrent finding of the courts below that on the date when the landlord posted his notice for demand a sum of Rs. The appellants challenge the correctness of the finding. 5. The concurrent finding of the courts below that on the date when the landlord posted his notice for demand a sum of Rs. 92/8/- only was due from the tenants, and on that very day they remitted a sum of Rs. 70/- by money order which was subsequently refused by the landlord is conclusive is in second appeal. But the appellate court found that the failure of the tenants to remit the balance of Rs. 29/8/- within one month of receiving the demand notice made them defaulters and entitled the landlord to file a suit for ejectment. The appellants contend that this finding is erroneous because the notice of demand was invalid and also the Court overlooked that the tenants failure to pay was due to the landlords' refusal to accept the rent. 6. The first question is whether the notice of demand for rent is invalid. On 13th July the landlord sent the notice by registered post. The delivery post mark bears the date 15th July and also an endorsement by the postman that it was refused. The date written by the postman is 14th July, but this is obviously erroneous in view of the date on the delivery post mark. In spite of their refusal the defendants must be held to have been served with the notice of demand on 15th July. Subsequently the same notice was served by the landlords' lawyer and the appellants sent a reply on 11th August. Its effect will be considered presently. 7. But the appellants had already remitted on the 13th July, a sum of Rs. 70/- as four months rent which was refused by the landlord. It is not known on which date the money order was tendered by the post office. The parties live in the same city and the same postal area the Court may presume under Section 114 of the Evidence Act that the normal course of business must have been followed and the money order reached the landlord on the 14th July, though the exact time of delivery cannot be ascertained. 8. The parties live in the same city and the same postal area the Court may presume under Section 114 of the Evidence Act that the normal course of business must have been followed and the money order reached the landlord on the 14th July, though the exact time of delivery cannot be ascertained. 8. The position therefore is that on the date when the landlord posted his notice of demand more than three months rent was due from the tenants, but on the same date, before the notice reached them and independently of it, the tenants remitted a substantial portion of the rent which if accepted before the service of demand would have reduced the arrears to less than the minimum prescribed by Clause (a). In this situation, several questions of law arise. First, is a notice of demand for more than three months rent sent by registered post invalid because the tenant, though in arrears for more than three months when it was posted, was in arrears for less than three months when it was served on him? Secondly, is a notice of demand sent by registered post invalid because on the very date when it was posted and before it was served, the tenant of his own accord and independently of the notice, remitted by money order a substantial part of the rent which was refused by the landlord but which if accepted would have reduced the arrears to less than three months rent there being no evidence of whether the remittance reached the landlord before the notice of demand was served on the tenants, or vice versa beyond the fact that the parties lived in the same city and in the same postal area? Thirdly where the landlords' notice of demand and the tenants remittance are posted on the same day independently of each other, is the onus on the landlord to prove that the tenant was in arrears of rent for more than three months when the notice of demand was served on him or on the tenant to establish that he was not? These questions overlap. 9. These questions overlap. 9. In the first question counsel for the respondent contends that a notice of demand which is posted is valid if the tenant is in arrears of rent for more than three months at the time of posting, and its validity is not affected by any subsequent payment made while the notice is in post. I do not agree. 10. On a proper interpretation of Clause (a) the tenant must be in arrears of rent when the notice of demand is or will be deemed to have been actually served on him. Section 3 prohibits the filing of a suit for ejectment without the permission of the Distt. Magistrate except in a few cases which are specified in that Section. One of them is provided in Clause (a) which runs thus:- "(a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand." To claim the benefit of this clause the landlord must prove that (1) the tenant was in arrears of rent for more than three months; (2) he was served with a notice of demand; and (3) he failed to pay the rent demanded from him within one month of the service of this notice. The three conditions are inseparable and if any one of them is absent the other two become ineffective. If the tenant is not in arrears of rent for more than three months he cannot be served with a demand under Clause (a); and even if he is in arrears but no demand is made on him, he cannot be held to have failed to pay the rent. To lift the bar against ejectment the landlord must prove that the tenant was in arrears of rent for more than three months when the notice of demand as served on him. To lift the bar against ejectment the landlord must prove that the tenant was in arrears of rent for more than three months when the notice of demand as served on him. This is indicated by the words of Clause (a) "the tenant is in arrears of rent for more than three months and has failed to pay the same within one month of service upon him of a notice of demand." The words 'and failed to pay the same' connect the three conditions, and mean that the tenant will be deemed to have failed to pay the rent only after the landlord makes a demand for arrears which must be for more than three months rent. If the rent due is for three months or less the landlord cannot serve a notice of demand for the purpose of claiming the benefit of Clause (a), and if he does the notice will be invalid. 11. The landlord must prove that the tenant was in arrears for more than three months at the time when the notice was served on him. This is clear from the words, "within one month of the service upon him of a notice of demand." The law makes no distinction between personal service and service by post. In both cases the demand is made only when it is or deemed to have been served on the person to whom it is addressed and it is immaterial whether it is delivered by the post office or any other agent or by the sender himself acting as his own messenger. In case of personal service, the sender could not have claimed that the demand was served when he started from his home with the notice of demand in his pocket and the position in law is not charged if he hands over the letter to the post office or any other agent. The material time being the actual service of notice, if before it is served the tenant makes or tenders payment the effect of which is to reduce the arrears to three months rent or less, he cannot be served with a notice of demand under Clause (a), and any notice reaching the tenant after he had tendered this payment is not a valid notice under Clause (a). 12. 12. The next question relates to the onus of proof in cases where the notice of demand and remittance are posted on the same day and cross each other. Where lies the onus after the tenant has established that on the very day when the notice of demand was posted but before it was served and independently of it, he remitted a part of the rent which on acceptance would reduced the arrears to less than three months? Is it still on him to prove that his remittance reached the landlord before the notice of demand was served on him or on the landlord to establish that his notice was served on the tenant first? The question is of practical importance, for in one case the remittance reduces the arrears to less than three months and makes the demand invalid, and in the other it is only part payment of rent after service of a valid demand. The question is also of general importance which can arise in every case where the notice of demand and remittance are sent by post on the same day. I think the onus is on the landlord to establish that his demand was served before the remittance reached him. To claim the benefit of Clause (a) he has to establish that all the conditions imposed by that clause have been fulfilled; therefore he must prove that the tenant was in arrears for more than three months at the precise moment when the notice of demand was served on him. If he cannot, he has failed to establish that the bar against ejectment has been lifted in his case. 13. The next question is whether the landlord has discharged this onus in this case. The notice of demand was sent on the 13th July and served on the tenants on the 15th. The tenants have established that on the 13th July they remitted by money order a sum of Rs. 70/- as four months rent, and this remittance was refused by the landlord. The exact date and time of refusal are not known. But a presumption will arise that the ordinary course of business was followed. The parties reside in the same postal area in Allahabad. The court will therefore presume that in the ordinary course, on the next day-14th July-the post office tendered the money order. The exact date and time of refusal are not known. But a presumption will arise that the ordinary course of business was followed. The parties reside in the same postal area in Allahabad. The court will therefore presume that in the ordinary course, on the next day-14th July-the post office tendered the money order. If not refused this remittance would have reduced the arrears of rent to less than three months and thereby invalidated the demand which was served on the 15th. 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. In these circumstances the notice of demand must be presumed to be invalid. 14. Counsel for the respondent contended that after the landlord had proved that the tenant was in arrears for more than three months when the demand was posted on 13th July, it must be presumed that this position remained unaltered till the 15th July when it was served, and the onus was on the tenant to prove that his remittance had reached the landlord before the demand reached him. The flaw in this argument is that the position did not remain unchanged after the landlord posted his demand, because on the same day the tenants sent their remittance by money order. The flaw in this argument is that the position did not remain unchanged after the landlord posted his demand, because on the same day the tenants sent their remittance by money order. Where the remittance and the demand are posted on the same day independently of each other but the tenants remittance was handed in at the post office of the area in which the parties reside while the landlords demand was sent by registered post from another post office outside this area there can be no presumption that the demand reached the tenant first, and the onus is still on the landlord to establish that at the time of the service of demand the tenant was in arrears for the minimum period prescribed by statute. 15. Counsel for the respondent contended that the Court cannot presume that the notice of demand was served on the tenants on the 15th July when the postman's endorsement says that it was refused on the 14th. Counsel argued that under Section 114 of the Evidence Act the postman's entry should be presumed to be correct. I cannot agree. The presumption under Section 114 does not apply to a manual endorsement which is contradicted by the official post mark of delivery. A postman can err but the post mark cannot; and if the endorsement in ink says that a letter was refused on 14th July but the postmark indicates that it was sent out for delivery on 15th July at 3 p.m., the Court will presume that the postman wrote the figure 14th by mistake. This conclusion is supported in the present case by the fact that the notice of demand was registered at the Kutchery Post Office and the tenants reside within an area served by the Himkalyan Post Office. It was conceded by counsel that the letter must have been sent by the first post office to the second for delivery, and think it is unlikely that it was delivered on the next day after it was registered at the Kutchery post office. 16. Moreover, even if it is presumed that the letter was delivered and refused on the 14th July, it does not help the respondents case. The tenants remittance was also made on the 13th July and it must be presumed likewise that it was tendered on the 14th. 16. Moreover, even if it is presumed that the letter was delivered and refused on the 14th July, it does not help the respondents case. The tenants remittance was also made on the 13th July and it must be presumed likewise that it was tendered on the 14th. In fact, as the parties live within the same postal area, the possibility of the money order being tendered on the same day cannot be excluded. The onus was on the landlord to prove that more than three months rent was due when his notice of demand was served on the tenant, but he has not discharged it. 17. There is an additional reason for holding that the landlord was not entitled to the benefit of Clause (a). The tenants established that on 14-9-1954 they deposited a sum of Rs. 122/8/- as rent under Section 7-C (Exhibit B), and on 11.12.54 another sum of Rs. 52/8/- (Exhibit A). It was conceded before me that these sums were subsequently withdrawn by the landlord. The courts below accepted the tenants case that the deposits were made under Section 7-C because on each occasion the landlord refused to accept the remittance. They also proved that on 13th July 1955 (the lower court wrongly observed that it was on 12th July) they remitted another sum of Rs. 70/- by money order which was refused by the landlord. This remittance was made before the appellants received the notice of demand, which was served on the 15th. They sent a reply to the lawyer on the 11th August within one month of the service of demand in which they stated that they had made three remittances which had been refused by the landlord; that they were ready and willing to pay the rent but in view of his previous refusals the Landlord should collect the rent from them or specify the manner in which it should be remitted; and they inquired of the lawyer whether he was prepared to accept it on behalf of his client. No reply was sent to this letter. In these circumstances it cannot be said that the tenant "failed to pay the rent" as contemplated in Clause (a). 18. No reply was sent to this letter. In these circumstances it cannot be said that the tenant "failed to pay the rent" as contemplated in Clause (a). 18. The clause was enacted as a remedy against the tenants' default in payment of rent, but cannot be permitted to be used as an instrument for manufacturing a case of default and circumventing the restrictions on ejectment. The landlord is entitled to send a notice of demand if the tenant is in arrears of rent for more than three months and eject him if he fails to pay within one month. But if the tenant proves that on two previous occasions the landlord refused to accept rent and he had to deposit it in Court under Section 7-C, and he also refused without lawful excuse a third remittance which reached him after he had posted his notice of demand, and he wrote to the landlords' lawyer within the month of the service of demand that he was ready and willing to pay the rent provided the landlord was willing to accept it, and suggested that in view of his previous refusal the landlord should collect the rent from him or specify the manner in which it should be remitted, and also inquired of the lawyer if he was willing to accept rent on the landlords behalf but received no reply, the Court will not hold in these circumstances that the tenant had "failed to pay the rent" on demand. If the landlord without justification refuses to accept a part of the rent which was remitted without being demanded but reached him after he had posted his demand the Court will hold that his demand was only a device to create a case of default against the tenant a conclusion which may be strengthened by the fact, as in the present case, that before filing the suit the landlord applied for permission for the ejectment of the tenant which was refused. 19. Counsel for the respondent landlord argued that it is the tenant duty as a debtor to go to the landlord and tender rent and the appellants could not ask the respondent to collect rent from him. He also contended that the landlords refusal to accept rent does not wipe out the arrears, and under Clause (a) the tenant is under a duty to tender rent whenever the landlord demands it. He also contended that the landlords refusal to accept rent does not wipe out the arrears, and under Clause (a) the tenant is under a duty to tender rent whenever the landlord demands it. Neither of these two arguments has any substance. It is true that a debtor must seek his creditor. But he is not required to approach him again and again after he has refused to accept payment several times without lawful excuse. If the circumstances indicate that the landlords' refusal is deliberate and for some reasons he does not want the rent to be paid off, the tenant is relieved of his obligation to go to the landlord to make payment and is entitled to ask him to collect the rent or to give an assurance that he is prepared to accept it. If the circumstances of the landlords previous refusals make it certain that he will refuse again the tenant need not make a useless or futile remittance. Gauri Shanker v. Ganga Prasad, A.I.R. 1949 Pat. 192 Ram Krishna Prasad v. Mohd. Yahia, 1960 A.W.R. 437 : 1960 A.L.J. 579 and Wasu Ram v. R. L. Sethi, 1963 A.W.R. 472. In the present case the lower appellate court adjudged the appellants defaulters without considering the landlords' previous refusals to accept rent without any lawful excuse and his rejection of the tender of four months rent after he had sent his demand. Its finding is, therefore, erroneous and must be set aside. 20. I agree with the view of the trial court that in the circumstances of this case it cannot be held that the appellants failed to pay the arrears of rent within the meaning of Clause (a). The landlord was, therefore, not entitled to the benefit of this clause and the bar of Section 3 was not lifted........ The suit for ejectment was, therefore, not maintainable. I allow this appeal, set aside the decree for ejectment passed by the lower appellate court and dismiss the plaintiffs suit for ejectment with costs throughout. Leave to appeal is refused.