Lala Ram Bharosey Lal v. Gyan Singh — 1979 DIGILAW 1104 (ALL)

JUDGMENT N. N. Mithal, J. - The plaintiff has filed this second appeal in a suit for ejectment of the defendant from the shop along with the kotha in dispute and for recovery of rent, pendents lite and future mesne profits etc. It is alleged in the plaint that the defendant was a tenant at the rate of Rs. 6/- per month and had failed to pay rent from 2-11-1963 to 30th Mar., 1968. A notice of termination of tenancy under S. 106 of the T. P. Act was served and when the defendant failed to pay the demand in arrears within time a suit for ejectment was filed. 2. The plaintiffs suit was contested by the tenant. The rate of rent and tenancy were admitted but the defendant contested the plaintiffs allegations that the defendant had committed default in payment of rent. It was asserted that the defendant was always willing and ready to pay the rent every time, made personal efforts to tender the same and ultimately the amount had to be sent by T. M. O. on 1-4-1968. It is thus said that no default was committed. The last date for remitting the rent was 31st Mar., 1968, which was a Sunday and, therefore, sending of rent by T. M. O. on 1-4-1968 was within time. 3. The trial court decreed the suit for ejectment interpreting the words, "within one month" as meaning that the period of 30 days would expire on 31-3-1968 and it will not matter if the 30th day was a Sunday and it would amount to non-payment of rent within 30 days of the receipt of the notice. On this reasoning the suit was decreed. 4. In appeal the lower appellate court relying on 1968 All LJ 787 held that the defendant was entitled to send the money order by 31st Mar., 1968, but as it was a Sunday, the act of sending the money could be performed on 1-4-68. He applied S. 10 of the U. P. General Clauses Act and on that basis came to the conclusion that the demanded arrears of rent had been sent by the tenant within time. Taking this view of the matter he set aside the decree in respect of the ejectment and maintained the decree only for the recovery of some money as arrears. Taking this view of the matter he set aside the decree in respect of the ejectment and maintained the decree only for the recovery of some money as arrears. The plaintiff has thus come up before this Court, aggrieved against the said decision. Sri Dileep Kumar appearing for the appellant and Sri S. N. Agarwal appearing for the respondent have very ably argued the case. 5. The learned counsel for the appellant has tried to stress the following points in this appeal:- (i) that the Post Office was not agent of the plaintiff and should be deemed to be the agent of the person who employed its agency by payment of its charges for sending the money to the plaintiff. (ii) that the period of one month would expire on 29th of Mar., 1968 and not on 31st Mar., 1968 as held by the lower appellate court. (iii) that S. 10 of the U. P. General Clauses Act was not applicable to the facts of the present case and the post office cannot be deemed to be a court or "Office" for its purposes. 6. Having in his view the Full Bench decision of this Court in the case of Bhikhalal v. Munna Lal. AIR 1974 All 366 arguments analysing the said decision in a very laudable and attractive way were advanced by. the learned counsel for the plaintiff. It was argued that the post office could not be regarded as an agent of the plaintiff in the instant case. It was held by the said Full Bench that where the plaintiff employed the agency of the post office in serving the notice of terminating the tenancy of the tenant, it could be implied that the post office was employed as its agent by the plaintiff and if as a consequence of the said demand, the defendant sent the arrears of rent through money order it will be deemed that the services of the post office were utilised by him only as an agent of the plaintiff. It was, on this basis, held by that Full Bench that once the defendant had paid to the post office the amount of arrears of rent within time for being transmitted to the owner it would amount to payment of demanded arrears strictly in compliance of requirements of S. 3 (1) (a) of the U. P. Act III of 1947. It was, on this basis, held by that Full Bench that once the defendant had paid to the post office the amount of arrears of rent within time for being transmitted to the owner it would amount to payment of demanded arrears strictly in compliance of requirements of S. 3 (1) (a) of the U. P. Act III of 1947. Even if the money order was not tendered to the landlord' within one month of the service of the notice of demand the same will not result in the tenant being in default of payment of rent. 7. The learned counsel for the plaintiff has tried to distinguish this case and for this purpose he relied upon an unreported decision of Justice M. P. Mehrotra in Second Appeal No. 225 Of 1968 Thakur Satyanarayanji v. Devi Das Khatri dated 10th of July 1978 : (1978 All LJ NOC 72) wherein the above mentioned Full Bench case of Bhikhalal v. Munna Lal was considered at great length. It was held therein that the decision of the Full Bench was based on the peculiar facts of the case. It has been pointed out in the judgment that the fact that the plaintiff was residing in the village, the property in dispute was situated in Kanpur town and the tenant also resided there, the amount of rent claimed to be in arrear was a petty sum were some of the important circumstances from which it could reasonably be inferred that the tenant was not required to personally tender the amount of rent in arrears in order to save himself from default. In these circumstances, it was possible to hold that the parties had intended that post office could e utilised for the purpose of remitting the amount of arrears as an agent of the plaintiff. The learned counsel for the appellant has further argued that the authority which has been implied merely from the act of the plaintiff in sending the notice through the registered post cannot be justified in the instant case. The learned counsel for the appellant has further argued that the authority which has been implied merely from the act of the plaintiff in sending the notice through the registered post cannot be justified in the instant case. According to his submission S. 106 of the T. P. Act itself prescribes the modes in which a notice of termination of the tenancy may be served and where statute itself provides for the mode of serving notice on the tenant and in compliance thereof the plaintiff served a notice by registered post it should not be taken as a circumstance even impliedly authorising the tenant to use the Post Office as an agent of the plaintiff for sending the arrears. The learned counsel urged that this aspect of the matter was not duly considered by the Full Bench and the decision of that court was based entirely 011 the peculiar circumstances of that case. The learned counsel has stressed on the following passage occurring in the decision of the Full Bench:- "I am consequently of the opinion that, on the facts and circumstances of the case, they had an implied authority from the plaintiff to pay the amount to them by means of money order and since the defendant handed over the amount to the post office to be remitted by money order, he was discharged of his obligation in that respect." 8. According to the appellants counsel the ratio of decision in the Full Bench case was only to the effect that there should be an express or implied authorisation by landlord to the tenant to remit the rent by money order. Whether in a particular case such an authorisation exists or not would depend upon the facts and circumstances of each individual case. 9. It is very uncommon that when the landlord and the tenant live in the same town or city that rent may be Sent through, money order because money order charges have to be incurred by the tenant himself. If in any particular case this normal procedure is departed from then the party who has departed from this normal procedure must prove that the method adopted by it had the consent .of the landlord or he was, in some way, authorised to employ that method. Burden of proving such circumstances cannot be laid 011 the shoulders of the plaintiff. If in any particular case this normal procedure is departed from then the party who has departed from this normal procedure must prove that the method adopted by it had the consent .of the landlord or he was, in some way, authorised to employ that method. Burden of proving such circumstances cannot be laid 011 the shoulders of the plaintiff. It is also common knowledge that rent through money order is sent only when some friction has arisen between the landlord and the tenant or in cases when the landlord refused to issue receipts for the payment of rent. In this kind of case the tenant can only have the help of documentary proof of payment of rent but in such cases he himself employ the agency of the Post Office in order to obtain proof of having sent the money in time. Therefore, even in such cases, without proof of express or implied authorisation to the tenant, the post office acts as an agent of the remitter and not as an agent of the plaintiff. It was also urged that the tenant pays the money order charges and this sum is also not deductible from the rent claimed to be in arrears then Post Office ought to be considered only as an agent of the tenant. It was stressed that the remitter maintains his domain over the money order until its delivery to the addressee. 10. The learned counsel for the respondent on the other hand has relied upon a case reported in 1976 All LR 29 Dbarmendra Nath v. Jagdish Prasad. The facts of this case are, however, entirely different. Here the tenant had been paying rent to the successive owners by cheque since 1961. When a notice of demand was served on the tenant by a registered letter the defendant sent a reply enclosing a cheque for the amount of rent demanded in full satisfaction. This letter was addressed to four landlords and for that reason it could not be delivered to the plaintiffs and the same was returned to the tenant. The tenant, thereafter sent another letter. The question in that case was as to whether the act of the post office in erroneously refusing to deliver the letter containing the cheque to the plaintiffs would amount to default on the part of the defendant? The tenant, thereafter sent another letter. The question in that case was as to whether the act of the post office in erroneously refusing to deliver the letter containing the cheque to the plaintiffs would amount to default on the part of the defendant? The Court following the decision of the Full Bench in Bhikhalal v. Munna Lal AIR 1974 All 366 held as the post office was the agent of the plaintiff and the defendant had done all that lay within his power and as such the, defendant had not committed default in the payment of rent. The question whether the plaintiffs and the defendant lived tin the same town or not or whether there was any implied authority given either by the defendants or the plaintiff to the post office was not at all considered. This case will, therefore, be not helpful to the tenant. 11. Similarly, the learned counsel for the respondent relied upon another case reported in 1976 All LR 284 Noor llahi v. Mohammad Umar decided by Gopi Nath, J. wherein relying on Bhikhalal v. "Munna Lals case, the Court held that mere sending of the rent to the landlord through post office amounted to payment of demanded amount to the landlord and the tenant could not be said to have committed default. In this case also there is no discussion of the circumstances from which it could be inferred whether or not die tenant had an implied authority to send rent through post office as an agent of die plaintiff. This case also does not very much help in determining the controversy raised in the instant case. 12. To the same effect is one more case decided by Gopi Nath, J. Sidheshwari Prasad v. Gauri Shankar reported in 1977 (UP) R. R. C. 476. Here also placing reliance on Bhikha Lal v. Munna Lal, AIR 1974 All 366 (supra) it was held that the money had been sent by the tenant within one month from date of the receipt of the notice of demand and it would be sufficient compliance of the notice and the tenant could not be guilty of default. In this case also the Court had no occasion to consider the circumstances necessary to infer any express or implied authority to the tenant to utilise the Post Office; as plaintiffs agent. 13. In this case also the Court had no occasion to consider the circumstances necessary to infer any express or implied authority to the tenant to utilise the Post Office; as plaintiffs agent. 13. The learned counsel for the respondent also relied on 1975 All Civil Journal 188. The case is dated 10-2-1978 decided by M. P. Mehrotra, J. but in that case also the case of Bhikha Lal v. Munna Lal, AIR 1974 All 366 was relied upon without entering into the question whether in the circumstances of the case a valid inference of implied authority to the tenant to send the rent by money order was established or not. It may here be pointed out that the other judgment of M. P. Mehrotra, J. in the case of Thakur Satyanarayanji v. Devi Das Khatri relied upon by the plaintiff was delivered on 10th July 1978, much after the decision of the case reported in 1978 All Civil Journal 188. 14. Lastly, Sri S. N. Agarwal learned counsel for the respondent relied upon 1978 (UP) RCC 672 on a case decided by S. D. Agarwal, J. in Surendra Nath Mittal v. Daya Nand Swarup Agarwal (Reported in 1978 All LJ 339). In this case also reliance was placed on the Full Bench decision reported in AIR 1974 All 366 Bhikha Lal v. Munna Lal. Justice Agarwal relied upon the following passage occurring in the judgment of the Full Bench:- "In my view, if there is an express or implied request by the landlord for the payment of the amount claimed as arrears of rent through a money order, the payment to the post office is payment to the payee unless by subsequent action under S. 44 of the Post Office Act the remitter cancels the money order. In such an event the payment shall stand thwarted by subsequent act and shall be deemed never to have been made." 15. Having considered the arguments of the parties and considering the various decisions cited at the Bar it appears that the decision of the Full Bench in AIR 1974 All 366 does not lay down that in each and every case in which the landlord serves a notice: terminating the tenancy through post, it must necessarily imply a corresponding right in the tenant to utilise the Post Office as an agent of the plaintiff. No such broad principle of law appears to have been intended to be laid down and the Full Bench decision was based on the facts and circumstances of that case alone. I, therefore, find sufficient force in the submission of the plaintiffs counsel. 16. Coming now to the second point, the learned counsel for the plaintiff urged that the word month has been defined in the U. P. General Clauses Act of 1947. In the U. P. General Clauses Act a "month" has been defined as "a month shall mean a month reckoned according to the British Calendar". The assumption, therefore, is that one month is not necessarily equal to 30 days and where the intervening month was of 31 days that period of 31 days constituted one month. On the same principle it is argued, that if a person was given benefit of one day in those cases in which the intervening month was of 31 days then such a person should also be allowed to suffer if the intervening month is of February. Which may be of 28 days or 29 days only. The words which have been used in S. 3 (1) (a) of the U. P Act III of .1947 are as under: Section 3 (1) (a) "that the tenant is in arrears of rent for more than three months and had failed to pay the same to the landlord within one month of the service upon him of a notice of demand." 17. The crucial words used in Section are "failed to pay within one month of the service upon him of the notice of demand". Admittedly in the present case the notice was served on 29th Feb. 1968. The question that arises for consideration, therefore, is as to when the period of one month in this case will begin and expire. If the period is to be reckoned as 30 days then the period should extend up to 31st Mar. 1968. Should it be otherwise the question arises as to whether it will be deemed that the period of one month will expire on 29th Mar. 1968 or on 31st Mar. in the instant case. It may, however be mentioned here that there is no dispute between the parties that the date on which the notice was served is to be excluded in computing the period of 30 days or one month. 1968 or on 31st Mar. in the instant case. It may, however be mentioned here that there is no dispute between the parties that the date on which the notice was served is to be excluded in computing the period of 30 days or one month. The period of one month has, therefore, to be reckoned from 1-3-1968. Reference in this respect may be made to a case reported in AIR 1973 All 155 in support of the above. The question that still remains to be decided, however, is as to whether month would be month according to calendar or as equal to 30 days only. 18. A month according to English Calendar would ordinarily mean a period starting from a particular date in the month and expiring on a date previous to such date of the next month. For example if a period of one month has to be reckoned from 5th of Mar. in a year, the month will expire on the 4th April of the same year. In the same way when the period is to be reckoned from 28th Feb., the period of one month, on the parity of reasoning would expire on 27th Mar. 1968. 19. The learned counsel for the appellant has in this connection relied upon a Division Bench decision of this Court and reported in AIR 1978 All 546 . It was held by D. N. Jha, J. in this case under very similar circumstances that in case the period was to be computed from 8th February the period of one month would expire on 7th March. However, on applying the above principle to the facts of this case we find that the service of the notice of demand on the defendant in this case was made on 29th of Feb. 1968. That date i. e. 29th February had, therefore, to be left out from computation for purposes of limitation and the one month is to be counted from 1st of March. Reckoned in this manner the period of one month would expire on 31st Mar. 1968 being the day prior to the same date of the following month. 20. In the instant case the T. M. O. in dispute was admittedly sent by the defendant only on 1st of Apr. 1968 which was clearly one day beyond time. Reckoned in this manner the period of one month would expire on 31st Mar. 1968 being the day prior to the same date of the following month. 20. In the instant case the T. M. O. in dispute was admittedly sent by the defendant only on 1st of Apr. 1968 which was clearly one day beyond time. This leads us to consider the third and the last point and to examine as to whether the tenant was entitled to send the money on. the 1st of Apr. 1968 or not? If it is found that he was so entitled there would be no default in the payment of the demanded arrears otherwise it would be a case of default. 21. The learned counsel for the respondent has urged that the tenant could send the arrears demanded even on the 1st of April 1968 in the instant case as 31st Mar. 1968 was admittedly a Sunday, a closed day for Post Offices. For this, he sought the aid of S. 10 of General Clauses Act. The question for consideration, however, is as to whether the tenant would be entitled to take any benefit of S. 10 of the General Clauses Act. To examine this the Section has to be properly examined. S. 10 of the U. P. General Clauses Act reads as under: "Computation of time: Where by any Uttar Pradesh Act, any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the court or office is closed on that day or the last day of the prescribed period, the act or proceedings shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open. Provided that nothing in this connection shall apply to any act or proceeding to which the Indian Limitation Act, 1877 applies." 22. Before Section 10 of the General Clauses Act can apply it is necessary to examine that the act required to be done must be in a "court" or an "office". Admittedly post office is not a court. It will, therefore, have to be examined whether "post office" is an "office" in the sense in which it is used in Section 10 of the General Clauses Act. Admittedly post office is not a court. It will, therefore, have to be examined whether "post office" is an "office" in the sense in which it is used in Section 10 of the General Clauses Act. According to the arguments on behalf of the appellant "post office" is merely a commercial department of the Government which runs the service of sending post from one place to another for service charges received. It is not an "office" in the popular sense of the word. He, therefore, urged that a "Post Office" cannot be taken to be an "office" for the purpose of S. 10 of the General Clauses Act. On the other hand the learned counsel for the respondent has placed reliance on AIR 1957 Madh Pra 114 where it was held that "Post Office" is an "office" for the purpose of S. 10 of the Act. He has also relied upon the definition of word "post office" as contained in S. 2 (k) of Indian Post Office Act. He has further relied upon the case reported in AIR 1929 Nag 96 wherein it was held that even if S. 10 of the General Clauses Act does not in terms apply to "Post Office" the principle underlying therein can be applied in cases of "Post Office". 23. The definition of Post Office contained in the Post Office Act S. 2 (k) is as under:- Section 2 (k): "The expression Post Office" means the department, (Established for the purpose of carrying the provisions of this Act into effect and) presided over by the Director General. 24. It clearly shows that the post office is a department of the Government and, therefore, it is to be treated as an office within the meaning of S. 10 of the U. P. General Clauses Act. It was urged for the appellant that the nature of the work being done by a particular department of the Government would determine whether the particular department was an office or not. I do not think any such distinction can be drawn between the various departments on the mere ground that some of them are running commercial undertaking and others are not. The various "post offices" are being run and maintained under the Ministry of Communication and are "office" and the same cannot be treated as anything different from an office. I do not think any such distinction can be drawn between the various departments on the mere ground that some of them are running commercial undertaking and others are not. The various "post offices" are being run and maintained under the Ministry of Communication and are "office" and the same cannot be treated as anything different from an office. I am, therefore, of the view that the "Post Office" is an office within the meaning of S. 10 of General Clauses Act, all the principles therein shall apply to the post office also. It was, however, further contended by the learned counsel for the appellant that S. 10 of General Clauses Act can be called in aid by the respondent only when any act or proceedings is directed or allowed to be done or taken in any Court or office...." His submission was that in the instant case demand was made to pay rent by a registered notice and a period of one month was allowed to do so. This act of paying is to be done by the tenant and this is neither required to be done nor allowed to be done in any Court or Office. Even if Post Office is regarded as an Office for the purposes of S. 10 yet this act of payment through money order is not required to be done through Post Office. This could be done by personal tender as well. In this view of the matter, according to Counsel for the appellant, the tenant cannot claim any benefit from the said provisions. 25. There appears to be force in this argument. The act of paying the money is not "directed or allowed" to be done in any "Court or Office" under any Central or State Act or Regulation. It is in pursuance of a demand made by landlord that the tenant is permitted to pay the arrears demanded within one month and for this he could employ any agency or either himself pay the arrears by actual tender to the landlord. This is merely enabling and the provision only puts a restriction on the right of the plaintiff to seek ejectment of the tenant unless the tenant had committed any default. The Act merely puts this restriction in the way of a plaintiff to obtain a particular relief. This is merely enabling and the provision only puts a restriction on the right of the plaintiff to seek ejectment of the tenant unless the tenant had committed any default. The Act merely puts this restriction in the way of a plaintiff to obtain a particular relief. It, therefore, appears quite apparent that the defendant is not allowed or required under any Act or Regulation to pay. On the other hand this provision is made to enable the tenant to avoid his ejectment. In view of this, to my mind, help of S. 10 U. P. General Clauses Act] cannot be taken by the defendant respondent to save his tenancy by remitting the arrears by T. M. O. on 1-4-1968. This ought to nave been done by him by 31-3-1968 itself. 26. It is, therefore, to be held that the defendant respondent could send the arrears only by 31-3-1968 and since this had not been done in this case, the defendant had clearly committed default in the payment of the rent. Even if it be deemed that Post Office was the agent of the plaintiff even then the defendant will not get any benefit of S. 10, U. P. General Clauses Act. 27. In the result, the appeal merits to be allowed and the judgment and decree of the lower appellate court is set aside and the suit of the plaintiff is decreed with costs. The defendant is however, granted three months time from todays date to vacate the suit premises failing which the plaintiff may execute the decree for possession also against the defendant.