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1991 DIGILAW 395 (RAJ)

Badri Lal v. M/s. Sethi Brothers

1991-04-24

M.C.JAIN

body1991
JUDGMENT : 1. This appeal has been filed against the judgment of the learned District Judge, Bhilwara dated October 11, 1989 by which he has allowed the appeal and set aside the judgment of the learned Additional Munsif No. 2, Bhilwara dated April 8, 1985, decreeing the suit for ejectment on the ground of default in payment of rent. The fact of the case giving rise to this appeal may be summarised thus. 2. The plaintiff-appellant filed a suit for the recovery of arrears of rent @ Rs. 40/- per month from May 1, 1979 to October 31, 1980 and mesne profits of the subsequent period and ejectment on the ground of default in payment of rent, with the allegations, in short, that in the previous suit of ejectment on the ground of default in payment of rent for more than six months, benefit of the provisions of Section 13(a) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950, (hereinafter to be called 'the Act') was given. The defendant admits in his written statement that he is in occupation and possession of the suit shop on monthly rent of Rs. 40/- and benefit under Section 13(6) was given to him in the previous suit of ejectment on the ground of default in payment of rent. He has averred that rent of one month from April 24, 1979 to May 23, 1979, thereafter rent of three months from April 24, 1979 to January 23, 1980 was remitted by Money Orders to the plaintiff, he refused to take the same and the Money Orders sent by him were received back. He has further averred that thereafter he deposited Rs. 400/- as rent from May 1, 1979 to February 29, 1980 in the Court and continued to deposit the rent of the subsequent periods. After framing necessary issues and recording the evidence of the parties, the learned trial Court held that the rent was not deposited in time in the Court under Section 19-A of the Act and as such he has committed default in payment of rent of more than six months and accordingly decreed the suit for ejectment. On appeal, the learned District Judge allowed it and set aside the judgment as said above. 3. On appeal, the learned District Judge allowed it and set aside the judgment as said above. 3. It has been contended by the learned counsel for the plaintiff appellant that the plaintiff never refused to take the Money Orders, the defendant himself got them refused by the postman and it is not proved from the evidence on record that the plaintiff himself refused the Money Orders sent by the defendant. He further contended that the amounts of rent deposited in the Court under Section 19-A were not valid and as such they, cannot be taken into consideration. He relied upon Kuldip Singh v. Ganpat Lal, 1989 (1) RLW 90 (DB) and Bajranglal and others v. Ramdeo and others. 4. Learned counsel for the defendant-respondent duly supported the judgment under challenge. He contended that after the refusal of the three Money Orders it was not obligatory on the part of the defendant-respondent to further remit the amount of rent of the subsequent months by Money Orders. He also contended that it was not necessary for the defendant-respondent to deposit the rent in the Court under Section 19-A of the Act. He relied upon Smt. Manak Bai v. Kalyan Bux, 1989 (2) RLR 704 (DB). 5. No substantial question of law is involved in this appeal. Ejectment has been sought on the ground of default in payment of rent. Clause (a) of sub-section (1) of Section 13 of the Act is the relevant clause and it runs as under:- "(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months." Shantilal DW1 has deposed that he regularly tendered the rent to the plaintiff but the latter refused to take the same. He remitted the rent through Money Orders Exs. A/1, A/2 and A/3 and they were refused by the plaintiff. He further deposed that thereafter he deposited the amounts of rent in the Court under Section 19-A of the Act after the plaintiff refused to give him the particulars of his bank account. The plaintiff Badrilal PW1 has simply deposed that the defendant Shantilal did not pay him rent after the dismissal of the previous suit filed against him and the rent is outstanding against him since May 1, 1979. The plaintiff Badrilal PW1 has simply deposed that the defendant Shantilal did not pay him rent after the dismissal of the previous suit filed against him and the rent is outstanding against him since May 1, 1979. He has also deposed that he did not refuse to take the Money Orders and the defendant did not ask him to furnish the particulars of his bank account. The defendant has filed the refused Money Orders Couponse Exs. A/1 to A/3 and original Challans. Ex. A/4 to A/8 through which he deposited the rent in the Court. Their particulars are as follows:- S. No. Date of refusal of M.O./date of challan Amount Ex. No. M.O. challan Period 1. 6.6.1979 40/- Ex. A/1 24.4.1979 to 23.5.1979 2. 31.7.1979 120/- Ex. A/3 24.4.1979 to 23.5.1979 3. 25.1.1980 350/- Ex. A/2 24.4.1979 to 31.1.1980 4. 22.2.1980 400/- Ex. A/8 1.5.1979 to 29.2.1980 5. 20.4.1980 120/- Ex. A/10 1.3.1980 to 31.5.1980 6. 3.7.1980 120/- Ex. A/4 24.5.1980 to 24.8.1980 7. 15.9.1980 120/- Ex. A/5 25.8.1980 to 24.11.1980 8. 19.12.1980 120/- Ex. A/6 25.11.1980 to 24.2.1981 9. 23.3.1981 120/- Ex. A/7 25.2.1981 to 24.5.1981 Admittedly, the suit was filed on January 31, 1981. The plaintiff's case is that the tenancy commences from 1st of every English calendar month and rent since May 1, 1979 has not been paid to him. Under the facts and circumstances of the case, it can safely be presumed under Section 14, Evidence Act that the defendant remitted the rent through Money Orders Exs. A/1 to A/3 and they were refused by the plaintiff. The refused parts of the Money Order Coupons Ex. Sections A/1, A/2 and A/3 bear the endorsements of 'refusal'. Under similar circumstances such a presumption was raised in Shobhraj v. Bhanwarlal. A/1 to A/3 and they were refused by the plaintiff. The refused parts of the Money Order Coupons Ex. Sections A/1, A/2 and A/3 bear the endorsements of 'refusal'. Under similar circumstances such a presumption was raised in Shobhraj v. Bhanwarlal. It has been observed in Rajaram v. Ganpatlal, AIR 1973 MP 268 , as follows : "(3) The combined effect of the above two decisions may be stated thus : Unless contrary is established by reliable evidence, normal presumption is that money remitted by money order properly addressed, must have reached the payee and if it is returned with an endorsement of refusal to accept the payment, it will be deemed that there has been sufficient tender and the remitter will be deemed to have fulfilled his part of duty in the matter." It was not necessary for the defendant to produce the Postman to prove said endorsement of "refusal". It is correct that in respect of the period for which amounts of rent were deposited in the Court through challans Exs. A/4, A/5, A/7, A/6 and A/10, the same were not remitted by money orders. It has been held in Martin and Harris (P) Ltd. v. Prem Chand, 1974 RLW 115 (DB), that it is not necessary for the tenant that on each subsequent occasion he should first tender the rent to the landlord and obtain his refusal and thereafter deposit the rent in the Court. The fact and circumstances of the case support the statement on oath of the defendant that he requested the plaintiff to give the particulars of his bank account and he refused to give the same. It cannot, therefore, he said that the aforesaid deposits in the Court were not valid. The above chart clearly shows that at no moment of time the defendant was in arrears of rent for six or more months. Thus the above quoted clause (a) of sub-section (1) of Section 13 of the Act is not attracted in this case. In Kuldeep Singh v. Ganpat Lal (supra) relied upon by the learned counsel for the plaintiff-appellant neither the rent was remitted by money order nor particulars of bank account were asked for by the tenant. Similarly, in Bajranglal v. Ramdeo (supra) the tenant did not ask his landlord about the particulars of his bank account. In Kuldeep Singh v. Ganpat Lal (supra) relied upon by the learned counsel for the plaintiff-appellant neither the rent was remitted by money order nor particulars of bank account were asked for by the tenant. Similarly, in Bajranglal v. Ramdeo (supra) the tenant did not ask his landlord about the particulars of his bank account. As such the facts and circumstances of both these cases are quite different and distinguishable. They do not go to help the plaintiff-appellant.Consequently, the appeal is dismissed with costs.Revision dismissed.