JUDGMENT Sudhir Narain 1. THIS writ petition is directed against the judgment and decree passed by Judge. Small Causes Court. Deoria, decreeing the suit against the petitioner and the judgment dated 16-12-87, passed by District Judge, Deoria, affirming the judgment in revision. 2. BRIEFLY stated the facts are that the petitioner was a tenant of shop situate at Arjun Road, Deoria. Respondent no. 3 was the landlord who died during the pendency of this writ petition, He filed S.C.C. suit no. 44 of 19.80 for recovery of arrears of rent, ejectment and damages against the petitioner on the allegation that the petitioner was in arrears of rent since April, 1980. A composite notice demanding arrears of rent, house tax and water tax and terminating the tenancy was sent to him on 29th August, 1980. The notice was refused by the petitioner. He did not pay the arrears of rent, hence he was liable for payment of the arrears of rent, house tax and water tax, damages for occupation and liable for eviction. The suit was contested by the petitioner on various grounds. He alleged that he personally tendered the rent to the landlord respondent no. 3 but he refused to accept the same. He thereafter sent the money order on 29th May 1980 but respondent no. 3 refused to receive the money order on 7th June 1980 and thereafter he moved an application under section 30 (1) of U. P. Urban Buildings (Regulation of Letting, Rent, and Eviction) Act 1972, (hereinafter referred to as the Act) and deposited the rent for April and May 1990. Further, he went on depositing the amount in the said proceedings for the months of June, July, August, September, October and November 1990. He did not refuse to accept any notice sent by the landlord. He was not liable to pay house tax and water tax to the plaintiff. The judge, Small Causes Court had struck of the defence of the petitioner under Order XV, Rule 5 CPC but the said order was later on set aside. The parties led evidence in the case. The Judge, Small Causes Court recorded finding that the notice sent by the landlord dated 29-8-80 was served upon the petitioner. Respondent no. The judge, Small Causes Court had struck of the defence of the petitioner under Order XV, Rule 5 CPC but the said order was later on set aside. The parties led evidence in the case. The Judge, Small Causes Court recorded finding that the notice sent by the landlord dated 29-8-80 was served upon the petitioner. Respondent no. 3 did not refuse to accept any amount alleged to have been sent by the petitioner and, therefore, the petitioner was not justified in depositing the amount under section 30 of the Act. He did not pay the amount within one month from the date of service of the notice and thereby he committed default in payment of arrears of rent and was liable for ejectment. It was further held that the petitioner was liable to pay house tax and water tax as claimed by the petitioner. The petitioner filed a revision against the said order. The revisional court affirmed all the findings of the Judge, Small Causes Court but as far house tax and water tax were concerned, respondent no. 1 held that the landlord failed to prove the actual amount of house tax and water tax which the tenant was liable to pay to the Municipal Authority and, therefore, he was not entitled to any decree for payment of such amount. 3. THE petitioner aggrieved against these judgments filed a writ petition no. 1267 of 1988. A learned Judge of this Court allowed the writ petition. THE finding of the courts below that the landlord had not refused to accept the money order was reserved. It was found that from the material evidence on the record that the landlord had refused to accept the money order and the petitioner was justified in depositing the amount under section 30 (1) of the Act and taking into consideration the deposit already made by the petitioner, he was not in arrears of rent for four months on the date of the notice. He did not thereby commit any default in payment of arrears of rent as contemplated under section 20 (2) (a) of the Act. Respondent No. 3 filed Special Leave Petition no. 2650 of 1990 which was later on numbered as Special Appeal no. He did not thereby commit any default in payment of arrears of rent as contemplated under section 20 (2) (a) of the Act. Respondent No. 3 filed Special Leave Petition no. 2650 of 1990 which was later on numbered as Special Appeal no. 3806 of 1990 Their Lordships of the Supreme Court, vide order dated August 3, 1990, took the view that the High Court was not justified in reversing the findings of fact recorded by the courts below. THE case was remitted to the High Court to decide other grounds which were urged on behalf of the respondent (petitioner in the present case.) This writ petition was again posted for hearing 4. I have heard learned counsel for the parties. Learned counsel for the petitioner urged two points : 1. The notice dated 29th August 1990 was invalid ; and 2. The finding of the courts below that the respondent no. 3 had not refused to accept the money order sent by the petitioner on 29th May 1990 was erroneous. 5. THE validity of the notice dated 29-8 -1990 is challenged on the ground that the petitioner had claimed arrears of rent for the months of April, May, June and July 1980 and also house tax for the period 1-4-1975 to 31-7-1980 at the rate of 10 percent of the total rent due for the said period and also water tax for the same period at the same rate. THE Judge, Small Causes Court had recorded a finding that house tax and water tax was liable to be paid by the tenant but the said finding had been reversed by the revisional court. It is urged that after revisional court recorded finding that the petitioner was liable to pay house tax and water tax, the amount claimed in the notice being excessive, such notice should be treated as invalid. 6. A Division Bench of this Court in Lala Manohar Lal v. Lala Birmal Kumar, 1955 AWR 395, held that if a landlord sends a notice demanding the incorrect amount, there is no reason that the tenant should not pay the amount which, according to him, is due. The notice of demand shall not become invalid merely because the landlord has claimed an amount which later on may not be found correct by the Court. The notice of demand shall not become invalid merely because the landlord has claimed an amount which later on may not be found correct by the Court. In Ram Pratap v. Sri Panna Lal, 1956 ALJ 787, another Division Bench likewise held that if a notice of demand is sent at a higher rate or any excess amount is claimed, the demand notice shall not be invalid. Notice contemplated under section 3 (1) (a) of U. P. (Temporary) Control of Rent and Eviction Act lays down that the landlord should make demand of arrears of rent. He may not mention any amount at all and it is for the tenant to pay the correct amount. If in the notice of demand an amount is mentioned which turns out to be in excess of the amount which is really due from the tenant, the circumstance will not render the notice bad in law. Similar view was expressed in Ram Rakesh Pal v. Draupadi Devi, 1965 ALJ 249. Another Division Bench in Wasim Khan v. Sahid Ali, 1971 All IRCJ 867, held that if the landlord claims the rent at the rate of Rs. 25/- per month while ultimately it is found that the rate of rent was Rs. 6/- per month, a notice of demand requiring him to pay arrears at the rate of Rs. 25/- per month would be invalid as the notice will not be a bonafide notice. The Division Bench did not notice the earlier Division Bench decisions of this Court. In Mahendra Pratap Garg v. Smt. Vijai Laxmi General, 1983 (1) ARC 74, again the similar view was taken which was expressed in the cases of Lala Manohar Lal and Ram Pratap (supra). It appears that the decision of Wasim Khan (supra) was not brought to the notice of the court. A learned Single Judge of this Court at Lucknow Bench in Gokaran Singh v. Additional District and Sessions Judge, Hardoi, 1986 (2) ARC 32, referred the following question as question no. 1 to larger Bench :- "1. Whether a notice of demand can be held to be invalid or mala fide on the ground that the rent had been demanded at a higher rate than the correct rate, and if so whether the tenant can be absolved from the duty of complying with such a notice ?" 7. 1 to larger Bench :- "1. Whether a notice of demand can be held to be invalid or mala fide on the ground that the rent had been demanded at a higher rate than the correct rate, and if so whether the tenant can be absolved from the duty of complying with such a notice ?" 7. THIS question, however, is not involved in the present case. There is no dispute that the rate of rent was Rs. 150/- per month and the landlord had accepted the rent for the period till March 1990. The contention of the petitioner is that the landlord had demanded house tax and water tax as arrears of rent. The revisional court found that the amount claimed for house and water tax was not proved by the landlord. The demand of such amount in the notice makes it invalid. THIS question has to be examined keeping in view section 7 of the Act. 8. SECTION 7 of the Act makes the tenant liable to pay house tax and water tax as part of the rent. SECTION 7 may be quoted as under : "7. The demand of such amount in the notice makes it invalid. THIS question has to be examined keeping in view section 7 of the Act. 8. SECTION 7 of the Act makes the tenant liable to pay house tax and water tax as part of the rent. SECTION 7 may be quoted as under : "7. Liability to pay taxes-Subject to any contract in writing to the contrary, but notwithstanding anything contained in section 179 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959 (U. P. Act II of 1959) or in section 149 or in any, rule made or notification issued under section 338 of of the United Provinces Municipalities Act, 1916 (U. P. Act II of 1916) or in section 14 (1) (e) of the United Provinces Town Areas Act, 1914 (U. P. Act II of 1914), the tenant shall be liable to pay to the landlord in additional to and as part of the rent, the following taxes or proportionate part thereof, if any, payable in respect of the building or part under his tenancy, namely- (a) the water tax ; (b) twenty-five per cent of every such enahancement in house tax made after the commencement of this Act, or such portion thereof, as is not occasioned on account of the building as a result of the enhancement of rent under the provisions of section 5 : Provided that nothing in this section shall apply in relation to a tenant the rate of rent payable by whom for the time being (excluding any enhancement of rent under provisions of section 5) does not exceed twenty-five rupees per month." It is significant to note that the tenant is liable to pay to the landlord, in addition to and as part of rent, water, tax and 25 percent of every such enhancement in house tax made after commencement of the Act. The liability to pay such tax has been fixed under the Act. The landlord claimed the house tax and water tax for the period Ist April 1975 to 31st July 1980. on the ground that house tax and water tax were payable since 1-4-1975. The Judge, Small Causes Court held that the tenant was liable to pay such amount as claimed by the landlord as house tax and water was payable since Ist April, 1975, in respect of the building in question. on the ground that house tax and water tax were payable since 1-4-1975. The Judge, Small Causes Court held that the tenant was liable to pay such amount as claimed by the landlord as house tax and water was payable since Ist April, 1975, in respect of the building in question. The revisinal court, however, found that the shop in question was only a portion of a big premises and it was the duty of the landlord to prove the total amount of the tax paid by him and also the proportionate amount of such tax which may be determined with regard to the disputed shop. As the landlord failed to establish the total amount paid by him proportionately for the disputed shop, the tenant was not liable to pay the amount of house tax and water tax to the landlord. On such a finding recorded by respondent no. 1 it cannot be held that the notice was invalid because the respondent no. 3 failed to prove the proportionate amount of house tax and water tax which the tenant was liable to pay. Section 20 (2) (a) provides that the landlord shall serve a notice of demand on the tenant to pay arrears of rent and on date of service of the notice the tenant must be in arrears of rent for not less than four months. The courts below have recorded a finding that on the date of the notice the petitioner was in arrears of rent for more than four months. The notice of demand served on him was valid. The mere fact that additional amount towards water tax and house tax was claimed as part of rent which could not ultimately be proved, did not make the notice of demand invalid. 9. THE second submission of learned counsel for the petitioner is that prior to the date the notice was served upon the petitioner, he had already deposited the amount in proceedings under section 30 of the Act. He had deposited the rent for the months of April and May 1980 on 8th July 1980 on a tender peing passed by the court in proceedings under section 30 of the Act. Such deposit could be made only it the landlord had refused to accept the rent. He had deposited the rent for the months of April and May 1980 on 8th July 1980 on a tender peing passed by the court in proceedings under section 30 of the Act. Such deposit could be made only it the landlord had refused to accept the rent. THE landlord denied that he ever refused any amount tendered as rent or he refused the money order sent by the petitioner. A learned Judge of this court had set aside the findings of the courts below and held that the deposit was valid. In the appeal, their Lordships of the Supreme Court set aside the judgment of the learned Single, Judge taking the view that the finding of fact cannot be set aside in the writ petition. THE petitioner, however, insisted that certain legal questions have yet not been considered and it is necessary to consider the same as the direction of the Honourable Supreme Court was to decide the writ petition afresh in accordance with law. Learned counsel for the petitioner urged that the petitioner had remitted rent for the months of April and May 1980 to respondent no. 3 on 29th May 1980. It was returned with the postal remark 'refused' and there was a presumption under law that the money order was tendered to the landlord. It is true that there is a presumption under section 114 (e) of the Indian Evidence Act 1872 that judicial and official acts have been regularly performed. In the instant case, however, there are two questions whether such a presumption could be raised when it has not been proved that the money order was sent with a complete and correct address and, secondly, whether such presumption, if any, has been rebutted by respondent no. 3. 10. THE petitioner had filed postal receipt. THE address even in the said postal receipt was only 'Ram Autar Jhunjhunwala'. There is a controversy also whether the date mentioned on the seal is 29th April 1980. or 29th May 1980 THE address given in the postal receipt is hardly sufficient to indicate the address of respondent no. 3.THE petitioner had filed an application under section 30 of the Act and in the said application he had given the address of respondent no. 3 as 'Jhujhunwala, Firm Madan Lal Ram Autar, Fancy Vastra Vikreta Madan Katra, Mohan Road, Deoria, Tappa Deoria, Pargana Salemnpur Majhauli. 3.THE petitioner had filed an application under section 30 of the Act and in the said application he had given the address of respondent no. 3 as 'Jhujhunwala, Firm Madan Lal Ram Autar, Fancy Vastra Vikreta Madan Katra, Mohan Road, Deoria, Tappa Deoria, Pargana Salemnpur Majhauli. In the proceedings under section 30 of the Act, respondent no. 3 had filed an objection and in the said objection he categorically denied that he had refused any money order sent by the petitioner. A true copy of the objection has been annexure-I to the supplementary affidavit filed by respondent no 3. THE petitioner did not summon the money order coupan from the postal department which could establish the address on which it was sent. THE petitioner appeared as a witness in the case and he did not say anything about the correctness of the address or at what address he had sent the money order. Learned counsel for the petitioner placed reliance upon the decision Mohammad Husain alias Lallan v. Lala Shyam Sunder, 1966 AWR 185. In that case the only question involved was whether the name as given in the address was seth Sunder Lal instead of Lala Shyam Sunder. There was no controversy regarding the address. The Court observed that if the address is not complete, the endorsment could have been made 'not found' instead of 'refused'. On the facts of that the case it was found that the landlord had admittedly refused to accept the money order on the previous occasions also when the tenant had remitted the rent to him. 11. HE further placed reliance on Kallu v. Gaurishanker, AIR 1981 SC 1455 . In that case, the landlord had admittedly refused on the ground that the money order was addressed to 'Gauri Shanker Wali Shiv Narain, while it should have been addressed to 'Shiv Narain' It was held that the description of the landlord was given as it was in his own sale deed. The land lord also after refusing the money order when it was tendered did not make any attempt to clarify the position. In the instant case it was not admitted by respondent no. 3 that he ever refused to accept the money order on the ground that his name was not correctly addressed. The land lord also after refusing the money order when it was tendered did not make any attempt to clarify the position. In the instant case it was not admitted by respondent no. 3 that he ever refused to accept the money order on the ground that his name was not correctly addressed. It is a case whether it has to be proved that the money order was sent at correct address: The presumption will arise when it is shown that address given on the notice was correct and that the addressee resides at the place of such address-See Gajraj v. Thakur Ganga Ji Maharaj, 1982 (2) ARC 372. 12. EVEN assuming that there was presumption of tendering the amount by money order the question is whether such presumption has been rebutted by respondent no. 3 in the instant case. Learned counsel for the petitioner urged that mere denial by respondent no. 3. that he did not refuse to accept the money order does not rebut the presumution. In Smt. Janno v. Gaja Singh, 1966 AWR 420, it was held that a bare dental by the interested person will not necessarily rebut the presumption. Similar view was expressed' in Vasu Ram v. R. L. Sethi, 1963 AWR 472. Learned counsel for the respondent, on the other hand, placed reliance upon the decisions Ramesh Chandra v. Gyan Chandra, 1985 (1) ARC 13, Sagar v. Vth Additional District Judge Lucknow, 1986 (I) ARC 475 and Smt. Bachchi Devi, v. Additional District Judge, 1983 (1) ARC 849, wherein it was held that the presumption is rebutted if the addressee denies that he refused to accept the money order or the notice which was alleged to have been sent to him. 13. THE rebuttal of the presumption which arises under the provisions of Section 114 (1) (e) of the Act, depends upon various facts. It the presumption is rebutted the onus to prove shifts to another party to prove his version. It is however, open to the Court to believe or disbelieve the statement of denial made by the addressee. THE Court has to scrutinise his statement considering his previous conduct and the surrounding circumstances. It will be also relevant to note as to what questions were put in cross-examination to such person. THE Court will have to keep in mind both the aspects. THE Court has to scrutinise his statement considering his previous conduct and the surrounding circumstances. It will be also relevant to note as to what questions were put in cross-examination to such person. THE Court will have to keep in mind both the aspects. THE Court will have to keep in mind the fact that by denial the interested party gains the profit and, therefore, he may have all the motive to deny it but, on the other hand he cannot lead any negative evidence and in that situation the Court has to consider the previous conduct of the parties and the surrounding circumstances. In the instant case, the petitioner in his statement admitted that respondent no. 3 used to accept the rent and issue receipts, He did not indicate any reason for refusing the money order by the landlord. There was no previous conduct of respondent no. 3 which could show that there was any motive to refuse the money order which might have been tendered to him. Respondent no. 3 appeared as a witness and in his statement in examination-in-chief denied that he ever refused to accept and money order tendered to him, as alleged by the petitioner. There was no cross-examination on behalf of respondent no. 3 on this statement. If an addressee is not cross-examined his statement goes unchallenged and the presumption, under law, is fully rebutted. See Amar Nath v. Smt. Champa Devi, 1978 ALJ 44 THE courts below after considering the material evidence on record, attending circumstances and the statements of the parties, recorded a finding that respondent no. 3 did not refuse the money order alleged to have been sent to him on 29th May 1980. This finding is unassailable and there is no legal infirmity. 14. NO other point has been pressed. There is no merit in this writ petition and it is accordingly dismissed. The parties shall bear their own costs. 15. THE petitioner is, however, granted three months time to vacate the disputed accommodation provided he gives a written undertaking before the Judge Small Causes Court, respondent no. 2, that he shall vacate the disputed accommodation and handover peaceful vacant possession to respondent no. 3 (now his heirs) within the time granted by this Court. Petition dismissed.