- (1.) IN this plaintiffs second appeal, arising out of a suit for ejectment from the house in dispute let out in 1944, it has been found by the two courts below that alterations made after 1947 did not result in bringing out a new construction. Therefore, provisions of Act III of 1947 were applicable to it. The finding being on question of fact has not rightly been seriously challenged on behalf of appellant.
(2.) ADMITTEDLY , one Qadir who was the owner of the premises in dispute entered into a contract of tenancy with the defendant in 1944. After he migrated to Pakistan it became evacuee property and the Custodian transferred its ownership to the plaintiffs father (since deceased). In the document of transfer an endorsement was made in favour of Naug and Company, the Commercial name in which business is being run by the defendants since the time of their, father. Rent has also been paid by Naug and Company. When it became in arrears of three months the appellants father gave a notice u/s.106 of the Transfer of Property Act and filed the suit for ejectment. One of the pleas raised was that tenancy being in the name of respondents father the notice could not be served on Naug and Company and for the same reason the frame of suit was also defective. None of the courts accepted these objections and held that the suit was maintainable by virtue of O.XXX, R.10 C.P.C. Service of notice was also held to be sufficient. A number of decisions have been cited for respondents to support the judgment on the defective frame of suit. An effort was also made to suggest that this provision applies only to firm, partnership business act. The argument does not appear to have any substance. It clearly envisages filing of a suit against a person who is carrying on business in any name treating it to be a firm. By fiction contained in the order the business is not converted into a firm or a partnership but it enables such business to be treated as an artificial person for the purposes of filing or defending a suit. The principal question, however, iswhether respondents committed any default. On this the two courts havediffered. The appellate court found that after the receipt of notice thedefendant within time sent the money order to the plaintiff and, therefore,even if it did not reach the plaintiff it did not make any difference in lawand it shall be deemed that as arrears of rent was tendered there was nodefault. In order to substantiate its plea the respondents had filed a receiptwhich contained the name of payee and the amount demanded. The post-man wasalso examined who stated on oath that a money order of the aforesaid amount wastaken by him to the appellants father but he refused to accept thesame. His statement was disbelieved as the coupon which was filed in this casewas denied by him to be the coupon which was taken by him toappellants father. The appellate court further placed reliance on aletter issued by Superintendent of Post-Offices on an application, filed by therespondents that the money order sent by him to the appellants fatherwas returned as refused. Therefore, it was returned to himand the matter was closed in the office. Can it be said that this letter issuedby the Superintendent of post-offices was inadmissible in evidence ? Reliancewas placed on Abdul Halim Khan v. Raja Saadat Ali Khan (AIR 1928 Oudh 155)where a Civil Surgeons expert opinion on official call from theDistrict Magistrate was held not to be an act or a record of his act as apublic officer. This decision does not apply as in this case the money orderhad been sent through Post-office. As it was not accepted by appellantsfather it was returned to the respondent. Under the act the responsibility ofaccepting the money order delivering it to the person concerned and incase of refusal to return it to the sender is the responsibility of thePost-office. The entry of sending the money order, of its refusal and itsreturn are to be made in the record maintained by the Post-office. It cannot hedisputed that records maintained in the Post-office are public records. Theentries in these records, therefore, can be produced in a court of law as apart of a public record. The respondent gave an application to theSuperintendent of Post-office about the money order sent by him to theappellants father. It was on this application that the Superintendentof Post-offices sent the reply based on entries in the public record. Itcannot, therefore, be said that the letter was inadmissible in evidence.
(3.) THE other argument on inadmissibility was regarding the money order coupon paper No.50 it is true that it does not contain the seal of Post-office. The post-man also denied it to be the coupon which was taken by him for delivery to the appellants father. It may be suspicious and may be ignored. This is exactly what the appellate court did. It did not place any reliance on it. Even if it may be assumed for a moment that the letter sent by Superintendent of Post-offices could not be utilised the finding of the appellate court that the money order was sent within time based on the money order receipt and the evidence of defendant-respondent, cannot be said to be vitiated by any error of law. It is true the receipt by itself does not prove that the amount sent was the arrears of rent but the receipt along with statement does not leave any room for doubt that the amount sent was towards arrears of rent. In Man Mohan Chawla v. Jaswant Singh (1969 Ren CJ 334) (Delhi) it was held : "That no presumption could arise by mere production of receipt that amount was sent to the landlord and to no other person." In this decision the presumption was refused to be drawn as the receipt did not contain the complete address of the landlord. No exception can be taken to it. But the question is whether where the tenant appears in the witness-box and states that on the date mentioned the amount demanded by the landlord was sent by money order and in support of it he produces the receipt it cannot be said that the sending of money order or its tendering is not established. If the tenant would not have appeared in the witness-box the mere filing of the receipt could not have been sufficient. The decision, therefore, is of no help to the appellant.;