Beni Madho Nigam v. Murti — 1968 DIGILAW 371 (ALL)

ORDER S.N. Singh, J. - This is a landlord's appeal in a suit for ejectment and arrears of rent. 2. The landlord had let out the accommodation in suit to the tenants Respondents for residential purposes. On 3-12-1963 a composite notice of demand and ejectment was sent to the tenants which was served on the tenants on 5-12-1963. It appears that the tenants remitted the empire amount of rent on 28-12-1963 but the money order coupon shows that the amount could not be delivered to the landlord because he had left the place. This endorsement is dated 6-1-1964. Since the amount had not been paid within one month of the demand the landlord instituted the present suit for the ejectment of the tenants on two grounds. Firstly, that the tenants had made a default inasmuch as the tenants had not paid the rent within one month of the service of the notice of demand. Secondly, the ejectment of the tenants was sought on the ground of nuisance. The nuisance alleged was that the tenants were throwing leather scraps in the drain which caused bad odour and made it impossible for the landlord to reside in the house in dispute. 3. The suit was contested by the tenants on the ground that there was no default and that there was no nuisance as alleged by the landlord. 4. The trial court accepted the Plaintiff's case and decreed the suit for arrears of rent as well as for ejectment. 5. On appeal the lower appellate court disagreed with the trial court on both these points and held that in the circumstances of the present case there was no nuisance and that the valid tender of the amount demanded had been made within time. 6. The landlord has come up in appeal to this Court. Sri M.P. Mehrotra Learned Counsel for the Appellant has submitted that the decision of the lower appellate court on both these points are incorrect. He has submitted that the lower appellate court has committed a mistake in holding that valid tender had been made within 30 days of the notice of demand. He contended that even accepting that there was a valid tender it was made on 6-1-1964 which was more than a month after the service of the demand notice. He has submitted that the lower appellate court has committed a mistake in holding that valid tender had been made within 30 days of the notice of demand. He contended that even accepting that there was a valid tender it was made on 6-1-1964 which was more than a month after the service of the demand notice. Learned Counsel relied on the case of Jodha v. Ajodhya Prasad 1967 AWR 214 for the proposition that the Post Office was the agent of the tenant who had remitted the money order. If on account of negligence of the Post Office the money was brought to the place of the landlord after a month the tenant has to suffer the consequence of the negligence of his agent. He further supported his submissions by citing the case of The Commissioner of Income Tax, Bombay South, Bombay Vs. Ogale Glass Works Ltd., Ogale Wadi, AIR 1954 SC 429 . 7. Apart from these two decisions Sri Mehrotra also cited a number of cases of other High Courts. As against this submission, it was urged on behalf of the tenants Respondents that in the circumstances of this case when the tenant had remitted the amount on 28-12-1963 and the landlord resided in the same city it should be held that there was a valid tender when the amount was put in the Post Office on 28-12-1963. In support of this contention Learned Counsel relied on a Division Bench decision of this Court in the case of Abdul Baqi v. Akhlaq Ahmad and Anr. 1963 AWR 18, Ratan Lal v. Jagannath Prasad 1967 ALJ 1029 and an unreported decision in Sri Chhotey Lal and Ors. v. Sri Suresh Chandra Gupta and Ors. S.A. No. 2707 of 1959 decided by Mr. Justice Beg (as he then was) on 5-4-1960). 8. I have looked into the authorities cited by the Learned Counsel for the parties and in my opinion the Appellant's contention has to be accepted. The Post Office is the agent of the sender and in this case the tenants remitted the amount on 28-12-1963 and there is a clear proof on the record to show that it was brought to the place of the landlord on 6-1-1964 which falls beyond 30 days. The Post Office is the agent of the sender and in this case the tenants remitted the amount on 28-12-1963 and there is a clear proof on the record to show that it was brought to the place of the landlord on 6-1-1964 which falls beyond 30 days. This is not the case of the tenants that even before that date he had tendered the amount which had been refused by the landlord nor did they adduce any evidence to the effect that the post man did go to the place of the landlord at an earlier occasion and the landlord managed to get it returned. The ruling; relied on by the Learned Counsel for the Appellant reported in the case of Jodha v. Ajodhya Prasad 1967 AWR 214 clearly supports his contention. This contention is also supported by the decision of the Supreme Court in the case of The Commissioner of Income Tax, Bombay South, Bombay Vs. Ogale Glass Works Ltd., Ogale Wadi, AIR 1954 SC 429 . The decisions cited by the Learned Counsel for the Respondents in my opinion are distinguishable. 9. So far as the case of Abdul Baqi v. Akhlaq Ahmad and Anr. (3) is concerned in this case the amount had been tendered within time and the finding of the court was that the refusal was the own doing of the landlord. The second case cited by the Learned Counsel for the Respondents Ratan Lal v. Jagannath Prasad (4) is also distinguishable. Inasmuch as in this case when this Court remitted issues to the lower appellate court the finding given by that court was that the tenant had actually tendered the amount of rent to the landlord within 30 days. The third case cited by the Learned Counsel is an unreported case. In this case what had happened was that the tenant had remitted the amount on the last 30th day and it was accepted to be a good remittance. But this Court was not interpreting Section 3 of the UP (Temporary) Control of Rent and Eviction Act as it is. At the time when this case was decided it was necessary for the landlord to have proved that there was wilful default. In that circumstance this Court held that even though the tenant had remitted the amount on the last day it could not be said that he had made a wilful default. At the time when this case was decided it was necessary for the landlord to have proved that there was wilful default. In that circumstance this Court held that even though the tenant had remitted the amount on the last day it could not be said that he had made a wilful default. None of the cases cited by the Learned Counsel in my opinion can help him in the circumstances of the present case. 10. The second ground on which the trial court had decreed the suit for ejectment was that the tenant had committed nuisance in the circumstances of this case. This finding was reversed by the lower appellate court and the lower appellate court held that throwing of leather cuttings in the drain which when getting soaked in the water spread foul smell did not amount to nuisance. I do not agree with this view of the lower appellate court. When an accommodation was let out for residential purposes and the tenant threw leather cuttings in the drain which when soaked spread foul smell, in my opinion, it will amount to nuisance in the circumstances of this case. If the accommodation had been let out for the purposes of the business which these tenants were carrying on it would have been different. Learned Counsel for the tenants submitted that this finding is one of fact and should not be interfered in second appeal. Reliance was placed on the cases of Bahal Singh and Others Vs. Mohammad Yusuf and Others , AIR 1926 50 (Nagpur) , Municipal Board Gorakhpur v. Rai Kamlapati Rai and Ors. 1940 AWR 620 (HC) and The Madura Municipality Vs. K. Nataraja Pillai and Another, AIR 1941 Mad 650 . I have looked into these authorities and find that the two Allahabad cases referred to by the Learned Counsel are not at all to the point. The other two cases. Anandrao v. President Municipal Committee Nagpur and Ors. (7) and Madura Municipality through its Executive Authority Commissioner v. K. Nataraji Pillai and Anr. (supra) do support the contention of the Learned Counsel for the Respondents. I am in respectful disagreement with the view of law expressed in these cases. 11. The other two cases. Anandrao v. President Municipal Committee Nagpur and Ors. (7) and Madura Municipality through its Executive Authority Commissioner v. K. Nataraji Pillai and Anr. (supra) do support the contention of the Learned Counsel for the Respondents. I am in respectful disagreement with the view of law expressed in these cases. 11. As against these decisions my attention was drawn by the Learned Counsel for the Appellant to the following decisions : AIR 1943 306 (Lahore) , Sunder v. Lalta Prasad 1951 AWR 148 and Bhogilal M. Davay Vs. S.R. Subramania Iyer, AIR 1954 Mad 514 . These cases do support the contention of the Learned Counsel for the Appellant that a finding about nuisance is not a finding purely on a question of fact but is a mixed question of law and fact. The case of Jugal Kishore v. Ram Saran Das (10), headnote (b) shows that the question whether certain proved facts established a nuisance is a question of law. Similarly we find that in the case of Sunder v. Lalta Prasad (supra) this Court interfered with the finding of the lower appellate court on the question of nuisance. The case of Bhogilal M. Davey v. S.R. Subramania Iyer (supra) is a case wherein exercising revisional jurisdiction the Madras High Court interfered with the findings of nuisance by the lower court. On a review of the authorities cited by the two parties I am of opinion that the finding of nuisance given by the lower appellate court is not correct and this Court can interfere in second appeal when this Court is satisfied that the finding is wrong. 12. In view of what has been said above this appeal succeeds, the decision of the lower appellate court is set aside and that of the trial court is restored with costs througout.