JUDGMENT : Chandra Prakash, J. This is an appeal against the order dated March 20, 1972 of Shri K.N. Misra, II Civil Judge, Meerut, remanding the case to the trial court under Order 41, Rule 23, Code of Civil Procedure. 2. The Plaintiff-Appellant filed the suit giving rise to this appeal against the Defendant-Respondent for the recovery of Rs. 17.90 arrears of rent and possession in respect of the property detailed in the plaint on the allegations that the Defendant-Respondent was the tenant of the Plaintiff's house in dispute on a monthly rent of fifty paise per month. Arrears of rent amounting to Rs. 23/- for 46 months fell into arrears which the Defendant-Respondent failed to pay. It was further alleged that the tenancy of the Defendant-Respondent was terminated by a valid notice of ejectment. The Plaintiff Appellant also claimed mesne profits at the rate of Rs. 10/- per month. It further alleged that the Defendant Respondent had made material alterations in the house in dispute. 3. The Defendant-Respondent resisted the claim by challenging the validity of the notice to quit. He also alleged that he sent the arrears of rent by money-order to the Plaintiff-Appellant and he committed no default in payment. It was also alleged that he had made no alterations. 4. The trial court after taking evidence of the parties came to the conclusion that the Defendant-Respondent had not committed default in payment of rent, but the notice to quit was invalid. It further held that the Defendant-Respondent did not make any material alterations. It also held that the Plaintiff-Appellant was not entitled to mesne profits at a rate higher than fifty paise per month. On the above findings the trial Court dismissed the Plaintiff's suit for possession but decreed the Plaintiff's suit for arrears of rent. 5. Against the order of the trial court the Plaintiff-Appellant filed an appeal in the Court below. The Court below after hearing the parties remanded the case, holding that in the interest of justice some more evidence was required in the case. 6. Feeling aggrieved, the Plaintiff-Appellant has now come up in appeal before me. 7. I have heard the learned Counsel for the parties and I have also gone through the record. After giving the matter my anxious consideration, I have come to the conclusion that the order of the Court below cannot be allowed to stand. 8. 6. Feeling aggrieved, the Plaintiff-Appellant has now come up in appeal before me. 7. I have heard the learned Counsel for the parties and I have also gone through the record. After giving the matter my anxious consideration, I have come to the conclusion that the order of the Court below cannot be allowed to stand. 8. The Court below has held that the burden of proof that Rs. 23/-, the arrears of rent, had been paid to the Plaintiff-Appellant or that it had refused the money-order lay on the Defendant-Respondent. On this point the evidence of the Defendant-Respondent consisted of his own statement one postal receipt dated 5-7-1969 (Ex. A-11) and money-order coupon (Ex. A-18). The Court below after considering the entire evidence in the case has found the money-order coupon (Ex. A-18) to be a fabricated document. Yet it has remanded the case to the trial Court in order to enable the Defendant-Respondent to give further evidence in the case in order to establish that the Plaintiff-Appellant had refused the money-order of Rs. 23/- sent to it. The order of remand has been passed under Order XII, Rule 23, Code of Civil Procedure. This rule, as amended by this Court, stands as follows: Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the Appellate Court while reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case, it may if it thinks fit, by order remand the case, and may further direct that issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit, and the evidence if any recorded during the original trial, shall subject to all just exceptions, be evidence during the trial after remand. 9. Now there was the specific case of the Plaintiff-Appellant in the plaint that the Defendant-Respondent had not paid any arrears of rent. There was a specific plea in the written statement also that the Defendant had sent Rs. 23/- to the Plaintiff by money-order and the Plaintiff had refused it. 9. Now there was the specific case of the Plaintiff-Appellant in the plaint that the Defendant-Respondent had not paid any arrears of rent. There was a specific plea in the written statement also that the Defendant had sent Rs. 23/- to the Plaintiff by money-order and the Plaintiff had refused it. There was a definite issue on the point whether the Defendant had committed any default in payment. It, therefore, follows that the parties knew what was the issue between them and what evidence they had to lead. The Defendant-Respondent was pleading payment. The Plaintiff Appellant was denying the payment. The Plaintiff-Appellant was required to give an evidence of negative character only and if, in fact it had not received any payment or it refused the money-order, it could not do better than to deny it. This it did. It was for the Defendant-Respondent to establish by positive or affirmative evidence that the money was paid to the Plaintiff or the Plaintiff refused the money-order. In these circumstances it was the duty of the Defendant-Respondent to prove by summoning the postal peon that the latter carried the money-order to the Plaintiff-Appellant and the Plaintiff-Appellant refused to accept it. This was not done in this case. Although the finding of fact on this point is against the Defendant-Respondent and the Court below has definitely held that the money-order (Ex. A-18) is a fabricated document and this finding is not open to challenge before me, yet I have enunciated the position of law in order to clarify the matter. The fact that the money-order coupon (Ex. A-18) does not bear the signatures of the postal peon and does not bear the date of refusal also is sufficient to throw out its importance in evidence. 10. There is yet another aspect of the case. As already noted above, the court below has given a finding of fact that this document (Ex. A-18) has not been formally proved and is a fabricated one. The case has been remanded in the interest of the Defendant-Respondent although the Court below has tried to support it by using the words 'interest of justice'. The Defendant-Respondent has not come before me to challenge the order with the result that he had acquiesced with this finding of the court below. 11. The case has been remanded in the interest of the Defendant-Respondent although the Court below has tried to support it by using the words 'interest of justice'. The Defendant-Respondent has not come before me to challenge the order with the result that he had acquiesced with this finding of the court below. 11. No doubt, the court below I has inherent power to pass any order to suit the purposes of justice in the exigency of the case. But the order has to be consistent with the principle that there should be no injustice to the opposite party. As already noted above, both the parties had full liberty to lead evidence. The burden of proof on this point was on the Defendant-Respondent and if he failed to adduce full and proper evidence he must suffer the consequences. 12. My attention on behalf of the Defendant-Respondent was drawn to the postal receipt (Ex. A-11) which shows that the Defendant-Respondent sent Rs. 23/- on July 5, 1969 to the Plaintiff. This receipt only shows that the Defendant-Respondent paid Rs. 23/- to the post-office with a direction to pay them to the Plaintiff-Appellant; but this receipt by itself does not show that the Plaintiff-Appellant received this amount or refused to receive it. The post-office is an agent of the sender and the sender is at liberty to countermand the payment till the payment is actually made. 13. The appeal is allowed with costs and the order of the Court below remanding the case is set aside with a direction to the Appellate Court to re-admit it to its original number and dispose it of on other points involved.