This Civil Second Appeal under sec.100 C.P.C. arises out of the judgment and decree dated 11.5.1994 passed by learned District Judge Jammu whereby the suit of the plaintiff decreed by the learned City Judge, Jammu vide his judgment dated 11.9.1990 has been dismissed. 2. The original defendant, the predecessor-in-interest of the respondent herein was the tenant of the suit premises at a monthly rental of Rs. 70/-. The tenancy commenced in March 1970.The defendant/tenant has executed a rent note in favour of the plaintiff/landlord. The plaintiff who is appellant herein filed a suit for ejectment of the defendant/tenant on the twin grounds; one that the defendant has committed three defaults towards the payment of rent being in arrears since March 1981 to the date of the filing of the suit i.e. February 1985; two; that plaintiff needs the suit premises for his personal use and occupation. Learned trial court by its judgment and decree dated 11.19.1990 decreed the suit of the plaintiff on the sole ground of commission of three defaults in payment of rent by the defendant and rejected the claim of the plaintiff in respect of his personal necessity. 3. Aggrieved by the judgment and decree of the trial court the defendant/tenant filed an appeal before the court of District Judge Jammu. Learned District Judge by his judgment and decree dated 11.5.1994 reversed the judgment and decree of the trial court and dismissed the suit, hence the present appeal of the landlord/plaintiff. 4. For hearing the second appeal following substantial questions of law have been formulated:- 1- Is the judgment of the Ist Appellate court perverse in so far as the same is not based upon any evidence? 2- What is the exact period of three defaults to bring the case within the purview of section 11(i) of Houses and Shops Rent Control Act? 5. I have heard the learned counsel for the parties and perused the record of the case thoroughly. 6. The counsel for the parties have addressed their submissions on the first question alone. Therefore I am restricting myself to the decision of this case on first question only. 7. From the perusal of the judgment of the first appellate court it appears that learned appellate court took up for examination the findings of the learned trial court returned for deciding issue Nos.5&6. Therefore I am restricting myself to the decision of this case on first question only. 7. From the perusal of the judgment of the first appellate court it appears that learned appellate court took up for examination the findings of the learned trial court returned for deciding issue Nos.5&6. As the case of the defendant/tenant was that he had paid the rent firstly to Lala Mela Ram and then to his widow, the defendant was required to prove the said fact. The defendant has admitted the execution of the rent deed. One of the recitals of the deed is:- �بیان کیا ک� مظ�ر نے سال1970ءمیں ی� مکان کرای� پر لیا تھا۔ ی� مکان مدعی کا کلکیتی تھا۔ اور لال� میل� رام ایڈوکیٹ ولی مدعی تھا ۔ ا�س سے مظ�ر نے کرای� نام� مدعی بذریع� لال� میل� رام تحریر کر کے دیا تھا ی� کرای� نام� جو ک� آج مظ�ر کو دکھایا گیا �ے جو مظ�ر نے بحق مدعی تحریر کر کے دیا تھا اس کرای� نام� کے مطابق جو بھی کرای� مظ�ر نے ادا کیا تھا و� اس کرای� نام� کے برپشت پر درج �ے۔ دیر وصولی کے نیچے مظ�ر کے دستخط موجود �یں۔ کرای� نام� مشمول مثل کے مطابق آخری ادائیگی کرای� 6-9-76کو دی تھی ی� کرای� مظ�ر نے ڈیڑھ ما�19-10-74تا 15-12-74ادا کیا �ے۔ ی� کرای� نام� مظ�ر نے تحریر کر کے دیا تھا۔ اس کرای� نام� پر (ای ایکس پی ڈبلیو۔ای� این) لگایاجاتا �ے۔ So the defendant had to prove payment of rent either by producing receipts or on the basis of acknowledgement of the rent on the reverse of rent note. The last acknowledgement of rent on the reverse of the rent note is of 6.9.1976 for payment of rent up to 5.12.1974. The defendant has not produced any receipt showing the payment of rent thereafter. But at the same time the case of the plaintiff is that defendant/tenant has not paid the rent since March 1981. From December 1974 to March 1981 to whom and how the rent was paid by the defendant. The plea of the defendant is that it was paid to Lala Mela Ram and after his death to his widow without obtaining any receipt, upto June 1985. His further stand is that after June 1985,the widow of Lala Mela Ram refused to accept rent so he sent the same to the plaintiff through money order, which was received by him. 8. His further stand is that after June 1985,the widow of Lala Mela Ram refused to accept rent so he sent the same to the plaintiff through money order, which was received by him. 8. As regards the claim of the payment of rent through money order to the plaintiff is concerned it is of no avail to the defendant firstly because neither the plaintiff has admitted the receipt of the same nor the same pertains to the period in issue as the plaintiff had instituted the suit in the month of Feb.1985. 9. This apart, no evidence has been led to prove the receipt of the money order. 10. Learned appellate court below appears to have erroneously taken the rent allegedly sent by the defendant through the money order to be for the period July 1975 to Feb.1976 as the defendants positive stand in his statement was that till June 1985 he had paid the rent to the widow of the said Mela Ram and it is only after her refusal to receive the same that he had sent through money order which could therefore be the rent for the period July 1985 to Feb,1986 and therefore could be of no consequence for the reason that it no bodys case that fresh tenancy stood constituted by acceptance of rent. Presuming the receipt of the money order by the plaintiff without there being any evidence the learned Ist appellate court further observed:- "He sent rent with effect from July 1985 to February 1986 amounting to Rs. 560/- by money order to the plaintiff which he received on 21.3.1986.Plaintiff has admitted receipt of rent upto March 1981 to Mela Ram. According to plaintiffs attorney many a time rent was acknowledged by late Lala Mela Ram in his presence on the rent note and a separate receipt was also issued. But the last entry on the rent note is dated 6.9.1976. Bbut rent was admittedly paid upto March 1981 and yet there is no such receipt on the rent note. Lala Mela Ram was an advocate by profession. He died somewhere in 1984. It is difficult to believe that he would have maintained a studded silence when the arrears of rent had piled up for nearly four years. He could have certainly issued notice even if he did not like to evict him. Lala Mela Ram was an advocate by profession. He died somewhere in 1984. It is difficult to believe that he would have maintained a studded silence when the arrears of rent had piled up for nearly four years. He could have certainly issued notice even if he did not like to evict him. His silence for such a long time is proof of payment of rent to him and this is the statement of the defendant. This finds support from the money order receipt dated 26.4.1986 by virtue of which the plaintiff acknowledged payment of Rs. 650/- as rent from July 1985 to February 1986. It was for the plaintiff to explain receipt of payment of this amount of rent. There is not even a whisper in the statement of plaintiffs Naveen Chander about this payment received by plaintiff at Bombay even though defendant made a statement on oath about it. Moreover, widow of late Lala Mela Ram was alive even when statement of plaintiffs attorney was recorded. There was a definite plea that she had received rent upto June 1985. Plaintiff ought to have examined her to rebut this evidence of payment to her. Plaintiffs attorney was examined in March 1987 and she was alive at that time also. Failure to examine her raises adverse inference against the plaintiff. Plaintiff himself owed explanation why he received Rs/560/- as rent due from July 1985 to Feb.1986. On the absence of this explanation it is to be assumed that rent upto June 1985 stood paid to Lala Mela Ram and his widow as claimed by the defendant." 11. Learned counsel for the appellant Mr.Sethi has argued that learned trial court was not justified in drawing adverse inference against the appellant by not examining the widow of Mela Ram to rebut the allegation of the defendant. According to him the question of rebuttal would have arisen if the defendant had been able to discharge burden of initial proof of the payment of rent to the plaintiff or his authorized agent. According to him the widow of the said Mela Ram was not his authorized agent and even otherwise it was for the defendant to examine the widow of Mela Ram to prove that she had received the rent if any on behalf of the plaintiff and only the burden of explaining the receipt of the rent would have shifted upon the plaintiff. 12. On the other hand learned counsel for the respondents Mr.Gupta argued that the defendant had discharged the onus by alleging payment of rent to the widow of Late Mela Ram. 13. I have considered the respective contentions of the learned counsel for the parties. I am of the considered view that finding of the learned Ist appellate court that the plaintiff has received the rent for the period from July 1985 to Febn.1986 is not based upon any evidence, cannot be accepted. It was for the defendant to prove that he had paid the rent to the plaintiff/landlord directly or through his authorized agent. During the minority of the plaintiff admittedly Lala Mela Ram was the authorized person to receive the rent in view of the fact that he had created the tenancy in favour of the defendant while acting on behalf of the plaintiff. Undisputedly Sh.Mela Ram died somewhere in 1984. The last available receipt/acknowledgement of rent on the rent note is upto the period 5.12.1974 and the plaintiff admits the payment of rent upto Feb.1981. For the intervening period there are no receipts available therefore, even in the absence of receipts in view of the admission it can be said that rent was paid upto Feb.1981 to Late Mela Ram but as regards the payment of rent to the widow of late Mela Ram is concerned it was for the defendant to prove firstly that widow of Mela Ram held authority top receive rent on behalf of the plaintiff who by then according to the counsel for the appellant and not denied by the counsel for the respondents, had become major (in 1976) and that rent was paid to her for the period the plaintiff had claimed to be unpaid. The defendant has not led any evidence for discharging the initial onus of proof therefore it could not have shifted upon the plaintiff. 14. The defendant has failed to prove the payment of rent by money order to the plaintiff. He has also failed to prove the fact that widow of Mela Ram was authorized to receive rent on behalf of the plaintiff. No evidence except his own statement has been led by the defendant to prove the payment of rent to widow of Late Mela Ram. It cannot be held that defendant was not in arrears towards payment of rent to the plaintiff. No evidence except his own statement has been led by the defendant to prove the payment of rent to widow of Late Mela Ram. It cannot be held that defendant was not in arrears towards payment of rent to the plaintiff. The learned appellate court, therefore, committed grave error of admitting the payment by money order in evidence without its proof by cogent evidence led by the defendant. It also erred in drawing adverse inference against the plaintiff due to non-examination of the widow of Mela Ram. 15. Therefore in the circumstances of the case question No. 1 formulated above is answered by saying that the finding of the Ist appellate court on the point that defendant was not in arrears of rent till the issuance of notice is erroneous and based upon no evidence, as such can be interfered with in second appeal under sec.100 C.P.C. 16. The learned counsel for the respondents contends that the finding being a finding of fact is not amenable to appellate jurisdiction under sec.100 CPC. He seeks to rely upon cases 2000(10) SCC 313 and 1999(7) SCC 303.Both these judgments of the Supreme Court are not applicable to the facts of the present case as in these cases it has been held by the Apex Court that the jurisdiction u/s 100 C.P.C. cannot be exercised without formulating substantial questions of law. In the present case, as already stated, substantial questions of law have already been formulated. The question formulated is not a substantial question of law but is a question of fact, is the submission of learned counsel for the respondent. 17. In Kulwant Kour v. Gurdial Singh Mann, AIR 2001 SC 1273 their lordships of the Supreme Court have held:- "In a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. This is however only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis--vis the concept of justice. This is however only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis--vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication-what is required is a categorical finding on the part of the High Court as to perversity. The requirement stand specified in S.103 and nothing short of it will bring it within the ambit of S.100 since the issue of perversity will also come within the ambit of substantial question of law. The legality of finding of fact cannot but be termed to be a question of law. However there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that section 100 of Code stands complied with." 18. In the present case learned District Judge accepted the payment of rent through money order to the plaintiff/landlord without there being any proof of the receipt thereof and proceeded to draw the adverse inference against the plaintiff. As already said without the formal proof of the receipt of the money order the inference of payment was not legally possible. The finding is therefore without evidence and thus becomes amendable to the jurisdiction of this Court under sec.100 C.P.C. As the tenant/defendant has failed to prove the payment of arrears of rent, the judgment and decree of the learned appellate court cannot be maintained. 19. In the result of the discussion the appeal of the appellant is allowed and impugned judgment and decree of the learned District Judge is set aside and the judgment and decree of trial court is restored. Decree to follow.