Govind Rao v. Kanhaiya Lal — 1970 DIGILAW 400 (ALL)

JUDGMENT Gupta, J. - This is a defendant's second appeal arising out of a suit for recovery of arrears of rent, mesne profits and possession by ejectment of the appellant from premises in occupation of the appellant as tenant of two minors, viz. Lal Chand alias Koka and Smt. Dhanui. The suit was instituted by the plaintiff respondent Kanhaiya Lal describing himself as guardian of the two minors. The assertion on the basis of which ejectment of the appellant was claimed was that the appellant, in arrears of rent for more than three months, had failed to pay the same to the respondent within one month of the service of a notice upon the appellant demanding payment. The suit was contested and the only plea in contest, with which we are concerned in this second appeal, was that the appellant had not failed to pay arrears of rent demanded on behalf of the plaintiff. The trial Court decreed the suit for recovery of a certain amount of money as arrears of rent, as also for ejectment of the appellant. The said decree was affirmed in appeal and, thereafter, the second appeal before us was filed. When it came up before Trivedi, J. on the 4th November 1970, it was pointed out to him that the decisions of this Court in two cases, reported respectively in 1967 A.L.J.R. 491 and 1967 A.L.J.R. 1029 were conflicting. Trivedi, J. therefore, considered it proper that the appeal be decided by a Division Bench. This is how this appeal has come up before us. 2. After hearing learned counsel for the parties we have no hesitation in coming to the conclusion that the decision recorded by Courts below was perfectly correct. 3. There is no controversy about the following facts. The house in dispute, wherein the appellant resided is situate in the city of Mirzapur. The plaintiff's residence was in village Bharetha, Tahsil Chunar in the district of Mirzapur. The appellant having fallen into arrears of rent period of more than three months the plaintiff respondent issued a notice the appellant demanding payment of those arrears. This notice was received by the appellant on the 27th of October, 1965. Thereafter on the 15th of November, 1965 the appellant placed an order with the postal authorities for remission of the amount claimed in the notice to the plaintiff respondent. This notice was received by the appellant on the 27th of October, 1965. Thereafter on the 15th of November, 1965 the appellant placed an order with the postal authorities for remission of the amount claimed in the notice to the plaintiff respondent. The address of the payee was correctly stated on the money order form but the amount remitted was offered to the plaintiff-respondent on the 29th of November, 1965. The plaintiff-respondent appears to have refused to accept the money order. There is nothing on the money order coupon received back by the appellant to indicate that the amount in the money order had been offered to the plaintiff on nay earlier date, not is there any evidence to that effect. The 29th of November, 1965 on which date the money was offered by the postal peon to the plaintiff but refused by the plaintiff was of Section 3(1) of the U.P. Control of Rent and Eviction Act. The Courts below have taken the view that in the circumstances failure on the part of the defendant to make payment took place as contemplated by Section 3(1)(a) of the Act, with the result that the plaintiff was entitled to sue as the appellant for ejectment, without the permission of the District Magistrate. 4. When the appeal come up before Trivedi, J. on 4.11.1970, the decisions of this Court referred to earlier were brought to the notice of Trivedi J. The first decision is that of Dhavan, J. dated the 14th of October, 1966 in the case of Jodha v. Ajodhya Prasad, 1957 A.L.J.R. 461, and the second decision is by Asthana, J. dated the 16th of August, 1967 in the case of Ratanlal v. Jagannath Prasad, 1967 A.L.J.R. 1029. In the former decision of Section 3(1)(a) of the Act, was an agent of the tenant and that if delay by the Post Office took place in the matter of delivering the money order to the addressee, it was delay on the part of the tenant's agent. It was further held that it was not sufficient for the tenant to prove that he had sent the remittance before the expiry of one month but the tenant must further establish that the remittance reached the landlord before the expiry of one month. It was further held that it was not sufficient for the tenant to prove that he had sent the remittance before the expiry of one month but the tenant must further establish that the remittance reached the landlord before the expiry of one month. In the later the amount demanded had been sent to the plaintiff within time even though the money order may have been tendered to the plaintiff after expiry of the time the tenant cannot be held to have failed to pay the amount as contemplated by Section 3(1) of the Act. There can be no doubt that a clear conflict exists between the decisions recorded by Dhavan, J. on the one hand and Asthana, J. on the other. However, the answer to the controversy appears simple and we find ourselves in agreement with the view taken by Dhavan, J. in Jodha v. Ajodhya Prasad (supra). The same view, we may add, was taken by S.N. Singh J. in the case of Beni Madho Nigam v. Smt. Murti, 1963 A.W.R. 726. 5. The controversy rests mainly on the question whether in the case of money order the Post Office is the agent of the remitter or that of the payee. Reference to decided cases bearing on the controversy appears unnecessary because, on our opinion, clear answer to the controversy is incorporated in the provisions contained in Section 44 of the Indian Post Office Act, 1898. The relevant portion thereof runs as follows :- "...................... a person remitting money through the Post Office by means of a money order may require that the amount of the order, if not paid to the payee, be repaid to him or be paid to such person other than the original payee as he may direct". 6. The above is altogether free from ambiguity. It contains clear statutory recognition of the principle that the Post Office, in the case of a money order is an agent of the remitter and continues to be so until termination of that agency which takes place when the money remitted by the remitter has been handed over to the payee. We have, therefore, no doubt that keeping. In view the provisions contained in Section 44 of the Indian Post Office Act, the Post Office is the agent of the remitter and not of the payee. We have, therefore, no doubt that keeping. In view the provisions contained in Section 44 of the Indian Post Office Act, the Post Office is the agent of the remitter and not of the payee. That being so, the Post Office in the present case was the agent of the appellant, and whatever the cause for the delay which took place before the amount under that money order was offered to the plaintiff-respondent for the first time on 29th November, 1968, the responsibility lay with the agent of the appellant for which the appellant has to suffer. There is nothing on the record to suggest any agreement between the parties to the effect that payment of rent was to be made by money order, nor was any such request contained in the notice of demand. In the circumstances the agency of the Post Office employed by the appellant for making payment was of appellant's own choice. We must say that if the amount under the money order had been offered by the Postal peon within time the position would have been different but we are not concerned with such a situation in this case. 7. In the result we have no doubt that the Courts below rightly took the view that failure on the part of the appellant in making payment within the period of one month, as contemplated by Section 3(1)(a) of the Act took place, with the result that the appellant became liable to be ejected from the premises in suit. 8. Before parting with his judgment we would like to state that learned counsel for the appellant also contended before is that the suit was not maintainable in the form it was filed because of the two minors who are the owners of the property in suit, Smt. Dhauni got married with the result that Kanhaiya Lal who instituted this suit on the assertion that he was the duly appointed guardian of both the minors had lost authority to sue on behalf of Smt. Dhauni. The plea was raised in the written statement on appellant's behalf, but the English order sheet of the trial Court makes it clear that on the date on which issues were framed this plea was given up. The plea was raised in the written statement on appellant's behalf, but the English order sheet of the trial Court makes it clear that on the date on which issues were framed this plea was given up. There is no controversy that one of the issues framed make any reference to the plea of non-maintainability of the suit on the ground that Smt. Dhauni had become married and that therefore the right of Kanhaiya Lal as guardian of Smt. Dhauni to file a suit was lost. After recording the issues actually framed by the learned Munsiff we find a specific note that no other issue was pressed by the parties. Under such circumstances, notwithstanding the fact that the Courts below appear to have discussed the said plea in the judgments recorded, by them, we are of opinion that we are not called upon to entertain or recorded any decision in regard to the aforesaid plea, as it appears manifest that the said plea was abandoned in the trial Court itself when the issues ware framed by that Court. The plea which appears to be technical involves questions of fact. We see no reason to justify consideration by us of such a plea. 9. For the reasons given above this appeal is dismissed with costs and the stay order passed by this Court on 13.2.1970 is vacated.