- (1.) THIS is a plaintiffs se cond appeal arising out of a suit for ejectment and arrears of rent. The suit was decreed by the trial court but the decree was modified in appeal to the extent that the decree for ejectment was set aside. Ag grieved by the same the plaintiff landlady has preferred this second appeal.
(2.) THE material facts necessary to appre ciate the controversy between the parties are that the defendant was a tenant in the west ern shop in suit situate in the city of Morada-bad on a monthly rent of Rs. 3. It was owned by the plaintiff and the rent was al leged to have fallen in arrears for the period 1- 1-1961 to 31-3-1962 amounting to Rs. 83.75 paise. THE landlady sent a composite notice of demand and termination of tenancy (Exhibit 12) on 23-4-1962 to the tenant, which was admittedly served on the respon dent on 24-4-1962. According to the plain tiff the rent claimed as arrears in the notice was not tendered within one month from the date of the service of the notice and consequently she was entitled to eject the defendant. The defence, in short, was that the amount of arrears being Rs. 65 only was remitted by money order on 18-5-1962 by the defendant but the same was refused by the plaintiff with ulterior motive and the money order was returned to the defendant after one month. Thus, the defendant hav ing tendered the amount within one month of the date of the service of the notice of demand, there was sufficient compliance with the provisions of Section 3 (1) (a) of U. P. Act No. Ill of 1947, and he was not liable to be ejected. The short question on which the deci sion of this case must rest is as to whether the amount of money remitted by money order on 18-5-1962 was actually tendered to the plaintiff or her agent within the period of notice. The crucial date for this purpose was 24-5-1962. It may be noted that now there is no controversy between the parties that the actual amount of arrears of rent was a sum of Rs. 65/- only.
(3.) SO far as the oral evidence in the case is concerned, the landlady Smt. Parmesh-wari Devi examined herself as (P. W. 1). She deposed that she did not receive the defendant's money order and that she was in Gurgaon from the 2nd of May, 1962, to 26/27th May, 1962, that when she returned from Gurgaon her husband told her that the postman came to tender the amount of money order but he had returned the same and apprised the postman of her Gurgaon address where she was at that time staying. The landlady's husband was not examined on behalf of the plaintiff. So far as the oral evidence of the de fendant is concerned, he examined himself and merely stated that he had remitted the amount of arrears of rent on 18-5-1962 and the same was tendered within the period of notice but it was refused by the husband of the land lady. The precise date of the tender to the plaintiff's husband and his refusal thereof is not known, and this has been the cause of the major difficulty in the present case. The difficulty could have been ade quately resolved either by the tenant exam ining the postman or the landlady examin ing her husband to depose about the exact date of the tender made to him. But curious ly enough, none of these two modes was adopted by the parties to fix the date of the tender and the refusal. Even in the plain tiff's deposition there was no indication of the actual date on which the amount remitted by money order was offered by the postman to the plaintiff's husband and refused by him. It may be added that the case has been argued by the learned counsel for the res pondent on the footing that the plaintiffs husband may for the purpose of the case be regarded as the landlady's agent competent to accept rent on her behalf. The contention of the learned counsel for the appellant is that there was no evidence to establish that the rent was tendered to the plaintiffs hus band within the period of notice and conse quently the defendant had failed to comply with the provisions of Section 3 (1) (a) of U. P. Act No. Ill of 1947 and rendered himself liable for eviction.;