JUDGMENT K.N. Goyal, J. - This is a plaintiff's second appeal, arising out of a suit for rent and ejectment in respect of an urban accommodation which was governed by U.P. Act No. 3 of 1947. The suit was filed in 1968. The plaintiff's case was that the defendant was a defaulter and had failed to pay the arrears of rent demanded by a combined notice to quit and notice demanding the arrears. As such the defendant had forfeited the protection of the Act against eviction. The defence was that the rent demanded was duly tendered within a month from the date of receipt of the notice, though the same was refused by the plaintiff. This defence was accepted by both the courts below. Another plea of the plaintiff, that the defendant had denied the title of the plaintiff, was also negatived. Aggrieved thereby, the plaintiff has come to this court. 2. The learned counsel for the appellant has contended, at the outset, that the appellate court had acted illegally in not disposing of the appellant's application for striking out the defence of the defendantrespondent for noncompliance with the provisions of O.15, R.5 CPC, when the application was given by the appellant, before the lower appellate court, that court merely ordered that the application would be taken up at the time of hearing of the appeal. Subsequently, however, no orders were passed and the appeal was disposed of without any orders having been passed on the application. It is, however, well settled that the power of the court to strike out the defence under O.15, R. 5 CPC is discretionary. Moreover, the new Act No. 13 of 1972 had come into force only during the pendency of the appeal. By that stage the entire evidence of both the parties had already been led. The power under O.15, R. 5 to strike out the defence cannot, it seems, be exercised at the appellate stage. Howsoever that may be, it may be assumed that the lower appellate court refused to exercise the discretion in favour of the appellant and the interests of justice do not demand the interference of this Court with such exercise of discretion. 3. Howsoever that may be, it may be assumed that the lower appellate court refused to exercise the discretion in favour of the appellant and the interests of justice do not demand the interference of this Court with such exercise of discretion. 3. The next point urged by the learned counsel for the appellant is that the lower appellate, court has wrongly taken the view that the post office was the agent of the appellant, instead of holding that the postoffice was the agent of the respondent who remitted the money order. In this connection the relevant facts may be noted here. Arrears of rent were demanded by notice which was issued on 21968 and was served on the defendant on 23968. The rent demanded was for the period 17867 to 16968. This notice was sent by registered post although both the parties live in the same locality. Thereupon, money order was sent by the defendant on 91068. The suit was instituted on 251068, while the money order reached the plaintiffappellant on 271068 when it was refused. Thus the money order took as long as 18 days to reach the plaintiff, although she lived in the same locality as the defendant. It was in the context of these facts that the question arose whether the post office through which the money order was sent was the agent of the remitter or of the payee. If the post office was the agent of the payee then the sending of the money order within time was enough, but if the post office was the agent of the remitter then the remitter must suffer the consequence of delay in transmission of the money order. 4. This question was considered by a Full Bench of this Court in Bhikha Lal v. Munna Lal, (AIR 1974 Allahabad, 366). It was held that Section 44(1) of the Post Office Act did not lead to the inference that the post office is always the agent of the remitter. The question whether the post office is agent of the remitter or of the payee is dependent on the circumstances of the case. In certain circumstances the post office may be treated as a common agent of both remitter and the payee. The question whether the post office is agent of the remitter or of the payee is dependent on the circumstances of the case. In certain circumstances the post office may be treated as a common agent of both remitter and the payee. If' there is either expressed or implied authorisation by the payee that the money is to be remitted through a money order, then the post office would be treated as agent of the payee and not of the remitter. Moreover, where creditor lives at a different place from that of debtor, such authorisation may be implied, for it is not expected that the debtor would go personally to a different town to make small payments. It will be all the more so where the creditor makes the demand by post. This matter is dealt with in para 23 of the report, where their Lordships (through Yashoda Nandan, J.) observed as follows: If the creditor and the debtor reside at two different places served by postal system, from the very fact that the creditor makes a demand through the post, an authority to the debtor to meet his obligation through the post is implied............... If a trader sends me a reminder of an outstanding bill through a messenger, in the absence of my intention expressed to the contrary, I believe I would be justified in assuming that the trader, by implication, has authorised me to send the amount outstanding through that messenger. Extending this principle, if a creditor who resides in a different town makes a demand from his debtor by means of a letter despatched through the post he impliedly invites the debtor to meet his obligation through the post. 5. Learned counsel for the appellant contended that the above passage deals with a situation where the creditor and the debtor reside at two different places served by postal system and not with a situation where the two reside in the same locality. It is true that normally the occasion for sending a letter of demand or a money order should arise only where the two parties live at different places and not where they live in one and the same locality. It is true that normally the occasion for sending a letter of demand or a money order should arise only where the two parties live at different places and not where they live in one and the same locality. It is, however, a common practice, of which judicial notice can be taken, that in landlordtenant disputes the notice of demand is sent by post and the other party also remits the rent by postal money order. This is so because if a notice of demand were to be sent through messenger or personally, the likelihood is of service being refused. Moreover, in such cases the landlord's evidence about personal refusal may be rejected by the court on the ground that it is interested evidence. Likewise where the landlord sends notice of demand which is often combined with a notice to quit, such notice is the first step in a litigation for recovery of possession of the leased premises. If the tenant makes personal tender, it is likely to be refused and the tenant's evidence about personal refusal by the landlord may, likewise, be rejected on the ground that it is interested testimony. It is thus a matter of common practice that each party chooses to deal with the other through the postal agency. In para 25 oft he report, their Lordships observed that implied authority can be inferred where payment by money order is made in accordance with the ordinary usage of mankind. Their Lordships also added that judicial notice must be taken of the fact that tenants in this country normally and usually remit their rent to the outstation landlords by money orders. This is true not only of tenants of outstation landlords but also of tenants of landlords living in the same locality at the stage where they receive a notice of demand combined with a notice to quit. On this principle it must be held that the post office was, in the present case, the agent of the landlady and in as much as the money order was remitted well within time the delay in its transmission cannot deprive the defendant of the benefit of the remittance. 6. The further question, however, arises whether the tender made by the tenant was unconditional. 6. The further question, however, arises whether the tender made by the tenant was unconditional. The exact words written by the defendant in the money order coupons are as follows: Shrimatiji, Sri Shiv Charan Mandir ki or se Vyavastha karte they yeh mujhse usee haisiyat sey kiraya 4/ rupeeya mahavar vasool karte they. Apke notice main iska ullekh nahi hai, Mukadamebazi ki barikiyon se bachne ke liye bat saf karke kiraya bhej raha boon. Yeh kiraya 19968 tak nota hai. Agar aap Shiv Charan ke uttaradhikari nahi hain to aap jane, maine apni stithi saaf kar dee hai. Uttar dene ki kirpa karen. Rupeeya mandir ke kaam main aana chahiye. Mahabir Prasad. Freely translated into English, it could be rendered as follows: Madam, Sri Shiv Charan used to manage the temple and it was in that capacity that he used to realise rent from me at the rate of Rs. 4 per month. Your notice does dot make any mention of this fact. However, in order to avoid litigational quibling I am sending the rent after making the position clear. The rent is being sent for the period upto 19968. If you are not the transferee from Shiv Charan that is upto you. I have made my position clear. Please reply. The money should be spent on purposes of the temple. 7. Shiv Charan was the previous landlord and it was after obtaining a sale deed from Shiv Charan that the plaintiff had served the notice of demand on the defendant. The transfer deed was executed by Shiv Charan in his personal capacity and not on behalf of the idol installed in the temple. The contention of the plaintiff was that Shiv Charan was owner of the leased property in his personal capacity and had transferred it as such and had passed on valid title in favour of the plaintiff. It was, therefore, not open to the defendant to impose the condition that the rent should be accepted by the plaintiff on behalf of landlord for being spent on the temple. Indeed it was not disputed in the trial court that the plaintiff was landlady of the premises and that she had validly succeeded to the landlordship through the sale deed executed by Shiv Charan Lal. 8. Indeed it was not disputed in the trial court that the plaintiff was landlady of the premises and that she had validly succeeded to the landlordship through the sale deed executed by Shiv Charan Lal. 8. It is well settled, vide Narain Das v. Avinash Chandra,'(AIR 1922 Privy Council, 347 at 349) that if a tender is accompanied by a condition which prevented it being a perfect and complete tender, the other party is under no obligation to accept it and that such a tender cannot be regarded as the equivalent of payment. In Corpus Juris Secundum (Volume 86) para 32 at page 575574 it has thus be n laid down as follows: Generally, where a person is to perform an act, the obligation to perform which is independent of any precedent or concurrent act to be performed by the other party, as where money is to be paid in liquidation of a debt, or the object is to discharge the tenderer of the obligation, the money or thing to be delivered must be tendered unconditionally, and where the statute requires the tender to be absolute, it fails, even though the only condition accompanying it is such as to impose the performance of a duty actually owing by one to whom the purported tender is made. A tender accompanied with some, condition, performance of which is impossible, or which the tender has no right to make, such as a demand that the creditor relinquish a legal right, is invalid, and likewise, it is not a good tender where a sum is offered as a settlement, or in full discharge, or as payment in full, or the offer is to pay, provided it is conclusively determined who the creditor is, whether two persons claim to be the creditor, or where the offer is to deliver bonds of a corporation to the holder of a note and lien, conditioned on the holder signing a receipt for the bonds and an assignment, without recourse, of the note and lien, and thereafter to obtain payment for the holder by a sale of the bond through a bank or broker. The tenderer may, on making a tender, accompany it with a declaration, not a condition that it satisfied the debt, if the expression used amounts to no more than an assertion of what the tenderer claims to be due. The tenderer may, on making a tender, accompany it with a declaration, not a condition that it satisfied the debt, if the expression used amounts to no more than an assertion of what the tenderer claims to be due. Moreover, if the condition interposed is one not prejudicial to the creditor, or is one of which the debtor has a right to insist, it does not vitiate the tender. Thus, a tender may be accompanied by such conditions as to acceptance as are, by the contract, conditions precedent to be performed by the person to whom the tender is made, and, where there are mutual or dependent obligations to be performed, tender may be conditioned on the performance, by the person to whom it is made, of the obligations resting on him. It has been held that a tender may be made conditional on proof being produced that the person holding the claim has a right to receive payment, if circumstances exist which reasonably induce a belief in the tenderer that the tenderee does not have such a right. So, a tender is not conditional because of the telegraph company's refusal to pay the money unless the payee identifies himself as required by the party making the tender. Protest. It has been held that, if the tender is otherwise valid, the fact that it is under protest does not invalidate it; but the tender of creak bearing the notation that it was paid under protest for an overcharges has been held not a valid tender. 9. The question thus arises whether the money order coupons reproduced above was conditional or not. The courts below have taken the view that because the defendant did not dispute the title of the plaintiff at the trial, the tender should be treated as unconditional. It has further been observed by the lower appellate court that the defendant had stated in cross examination that he was fully aware that Shiv Charan was the owner of the shop and that he had written as above only because Shiv Charan used to spend the money realised as rent over the temple. It has further been observed by the lower appellate court that the defendant had stated in cross examination that he was fully aware that Shiv Charan was the owner of the shop and that he had written as above only because Shiv Charan used to spend the money realised as rent over the temple. Learned counsel for the respondent has also invited my attention to the statement of Shiv Charan in which he admitted that he sometimes used to spend the money realised as rent, over the temple, but he did not always do so, and that he was not bound to do so. 10. Now it is beyond controversy that Shiv Charan was the owner of the said shop in his personal capacity. It follows that he was not bound to spend anything over the temple. Even if he did spend, off and on, the rent realised, over the temple managed by him, neither he nor his transferee could be bound to do so. Any person can spend his money over any charity in his discretion and such expenditure cannot be treated as obligatory. The courts below were wrong in taking the view that merely because the defendant did not dispute the plaintiff's title at the trial, the endorsement on the coupon quoted above should be construed as not amounting to denial of title. The endorsement is required to be construed as it is and not on the basis of what the another was advised to say subsequently at the trial stage. In view of this legal error the construction of the endorsement adopted by the lower appellate court cannot be binding in this second appeal. 11. Learned counsel for the respondent has contended that the language of the coupon merely referred to the past practice of Shiv Charan and merely expressed the pious wish that in future also the rent realised would be spent on the temple. A plain reading of the endorsement, however, does not support this contention. At the very outset the author says that Shiv Charan used to realise the rent in the capacity of manager of the temple. Thus, the clear intent of this assertion was that Shiv Charan was not landlord in his personal capacity but that the idol was the landlord and Shiv Charan was a mere manager. At the very outset the author says that Shiv Charan used to realise the rent in the capacity of manager of the temple. Thus, the clear intent of this assertion was that Shiv Charan was not landlord in his personal capacity but that the idol was the landlord and Shiv Charan was a mere manager. It has, no doubt, been said that the money order was being remitted for avoiding litigation and to byepass any quibbling. But even in this sentence it has been said that the remittance was being made after clarifying the position (Baat Saaf Karke). 12. This has been repeated in a later part, where it is said that the remitter had clarified his position. The very last sentence also insists that the money should be spent over the temple. Learned counsel for the respondent has contended that the expression 'Chahiye' is ambiguous and may also be indicative of a mere likelihood or desire. True, the word 'Chahiye' or 'should' is a word of many hues but the true meaning has to be elicited from the context and from the text as a whole. In the context of what precedes, it appears that the word Chahiye used here implies that this was a condition imposed on the receipt of the money and that the same was a condition of the tender. I am, therefore, of the opinion that the tender was not unconditional but was conditional and, as such, it cannot ensure to the benefit o the defendantrespondent. 13. In this view of the matter the defendant being a defaulter, was not entitled to the protection of the 'Act' and was, accordingly, liable to be ejected. 14. In the end, learned counsel for the respondent has referred to the hardship that is likely to be caused to the respondent if he is evicted. The appellant's counsel, on the other hand, states that the premises were required by the plaintiffappellant for her son who is in the final year LL.B. and who is expected to start legal practice. The examination of LL.B. (Final) has already taken place and only the result remains to be published. Considering the circumstances it will be reasonable to allow the respondent six month's time in case the respondent gives the usual undertaking within two weeks. 15. The examination of LL.B. (Final) has already taken place and only the result remains to be published. Considering the circumstances it will be reasonable to allow the respondent six month's time in case the respondent gives the usual undertaking within two weeks. 15. In the result, the appeal is allowed and the plaintiffappellant's suit for ejectment of the defendant from the premises in suit is decreed with costs throughout. The suit for rent has already been decreed by the courts below. The decree for ejectment will, however, not be executed for a period of six months if the respondent gives an undertaking on affidavit within two weeks to the effect that at the expiry of the said period the respondent will deliver vacant possession on to the appellant and that he will not transfer the possession to anyone else and will also continue to pay damages for use and occupation at the same rate as rent regularly. The damages for use and occupation may be paid direct to the appellant instead of being deposited in court and such payment will not give any fresh right to the respondent. (Appeal allowed)