- (1.) IN a plaintiff's second appeal arising out of a suit for recovery of arrears of rent and for ejectment of the defendant -respon dent, the following question has been re ferred, for consideration and answer, to this Full Bench: - "Whether on the facts and in the cir cumstances of the case the tenant could be said to have committed a default under Section 3 (1) (a) of the U. P. (Tem porary) Control of Rent and Eviction Act in respect of the payment of Rs. 35 which he had sent to the landlord by money order well within time but which had reached the landlord after the expiry of 30 days -
(2.) THE material facts giving rise to this reference are that Munna Lal, the defendant -respondent was a tenant of a portion of premises No. 105/336, Chaman -ganj, Kanpur at a monthly rent of Rs. 5. Appellants Bhikha Lal and others are owners of the said premises. The res pondent fell in arrears of rent and con sequently the .appellant filed civil suit No. 570 of 1961 for his ejectment and for recovery of arrears of rent and da mages for use and occupation amounting to a sum of Rs. 89.75 P. The suit for re covery of rent was ultimately decreed. The decretal amount and certain other amounts were deposited by the judgment -debtor in the trial court in compliance with a conditional interim order passed by the appellate court. The appellants did not withdraw the decretal amount in those proceedings. The respondent again fell in arrears of rent for the period 25th November, 1962 to 24th June, 1963 amounting to Rs. 35. The appellants thereupon served upon the respondent a notice on 23rd of July, 1963 demanding the amount decreed in suit No. 570 of 1961 as also arrears of rent amounting to Rs. 35. The appellants are residents of a village in Kanpur served by a post office situate at Kandhana. On receipt of the notice served on him on the 23rd of July, 1963, the respondent informed the appel lants - landlords by registered letter dated 6th of August, 1963 that the sum of Rs. 89.75 P. had already been deposited to wards rent to the credit of the landlords in previous suit No. 570 of 1971 which may be withdrawn from the court and that, as regards the arrears of rent for subsequent months, the sum of Rs. 35 was being remitted by money order. The two sums together represented the ar rears of rent then due and demanded. On the 7th of August, 1963 the defen dant -tenant placed an order with the postal authorities in the town of Kanpur for remission of the amount of Rs. 35. The money order was directed to Bhikha Lal, the head of the family of the land lords. The money order, however, was returned to the defendant -tenant with an endorsement of refusal. This endorsement on the money order coupon was dated the 26th of August, 1963. There is no evidence on record that the money order was presented to the appellants in time within a month of the service of the notice of demand on the res pondent. The appellants consequently instituted the suit giving rise to this second appeal. The suit was filed on the allegations that the defendant was in arrears of rent for more than three months and had failed to pay the amount within a month of the service on him of the notice of demand. The suit was contested on the ground that the amount of Rs. 89.75 P. claimed as arrears of rent had been deposited by the defen dant -respondent in suit No. 570 of 1961 which could have been with drawn by the appellants and that the balance of the arrears of rent claimed had been duly remitted by means of a money order, properly addressed to Bhikha Lal, the Head of the appellants, family within time but had been improperly refused acceptance by the appellants and, consequently, he was protected from ejectment by Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter re ferred to as the Act). The trial court de creed the suit for arrears of rent and for ejectment of the defendant. It held that the defendant could not be considered to be a defaulter iri respect of the demand of Rs. 89.75 P., being the decretal amount in suit No. 570 of 1961. It was held that this amount had been deposited by the defendant in the court and could be with drawn by the plaintiffs -landlords. The trial court, however, took the view that the defendant had failed to pay the arrears of rent of Rs. 35 within one month of the service of the notice of demand in asmuch as the money order sent by the tenant reached the landlords beyond that period. According to the trial court, con sequently, the defendant was not entitled to claim protection of Section 3 (1) (a) of the Act and was liable to be ejected. In appeal by the defendant the lower appellate court affirmed the finding of the trial court to the effect that the de fendant could not be considered to be a defaulter as far as the amount of Rupees 89.75 P. was concerned. So far as the demand for rent amounting to Rs. 35 was concerned the lower appellate court held that the money had been remitted by the tenant by money order well within time. The court below presumed that it must have reached the landlords within one month of the 23rd of July, 1963 on which date the notice of demand was served on the tenant. According to the lower appellate court the fact that on the money order coupon there was an endorsement dated 26th August, 1963 showing that the landlords had refused to accept the money did not mean that the money was not tendered to the land lords before that date and well within time. In the result, it was held that there was no default on the part of the tenant and he was entitled to the protection oi U. P. Act No. 3 of 1947. The decree for ejectment passed against the tenant was in consequence set aside. The landlords appealed to this Court. It was contended on behalf ol the landlords before K. B. Asthana, J., who heard the appeal that, in the cir cumstances of the case, the tenant had defaulted in paying both the amounts, namely, Rs. 89.75 P. and Rs. 35 within one month of the service of notice of de mand and consequently, the tenant was not entitled to any protection under U. P. Act 3 of 1947 and the suit for eject ment had wrongly been dismissed by the lower appellate court. The learned single Judge, who heard the appeal, was in clined to accept the reasoning of the lower appellate court and to hold that the tenant could not be considered to be a defaulter for non -payment of Rs. 89.75 demanded by the notice and that he did not lose the' protection of U. P. Act 3 of 1947 on that account. With regard to the amount of Rs. 35 claimed by the appel lants as arrears of rent, the learned sin gle Judge was inclined to take the view that by placing an order for payment oi that amount to the landlords, the respon dent had in the circumstances of the case, tendered the amount to the post office as agent of the landlords and, con sequently, there had been no default on his part within the meaning of Section 3 (1) (a) of the Act. He was, however, faced with the decision of this Court in Govind Rao v. Kanhaiya Lal, 1971 All LJ 1399 decided by a Bench consisting of B. D. Gupta and A. K. Kirty, JJ. in which the view taken was that Section 44 of the Indian Post Office Act, 1898 (hereinafter referred to as the Post Office Act) "con tains clear statutory recognition of the principle that the post office, in the case of a money order, is an agent of the re mitter and continues to be so until ter mination of that agency which takes place when the money remitted by the remitter has been handed over to the payee". The Bench went on to hold that, "we have, therefore, no doubt that, keeping in view the provisions contained in Section 44 of the Post Office Act, the post office is the agent of the remitter and not of the payee. That being so the post office in the present case, was the agent of the appellants and whatever be the cause of delay which took place before the amount under that money order was offered to the plaintiffs -respondents for the first time on 29th November, 1968, the responsibility lay with the agent of the appellant for which the appellant has to suffer. There is nothing on record to sug gest any agreement between the parties to the effect that the payment of rent was to be made by money order nor was any such request contained in the notice of demand. In the circumstances the agency of the post office employed by the appellants for making the payment was of the appellants own choice."
(3.) THUS , according to the decision in 1971 All LJ 1399 (supra), a statutory agency comes into existence between the tenant -remitter and the post office when the tenant chooses to send the arrears of rent demanded, by means of money order. The only exception to this sort of statutory agency, according to that deci sion, may be a case where there was an express agreement between the parties to the effect that the payment of rent was to be made by money order or there is a request that the amount claimed in the notice of demand be sent by a money order. The learned single Judge was dis inclined to accept the correctness of the decision in 1971 All LJ 1399 (supra). He, consequently, framed a number of ques tions and referred them for consideration to a larger Bench.;