- (1.) THIS is defendant's second appeal against the decree and judgment of the Court below decreeing the plaintiff's suit for rent and ejectment.
(2.) THE case of the plaintiff-respondent in brief was that he was the owner and landlord of premises No. 106/115 Ram Park, Gandhi Nagar, Kanpur and the appellant was his tenant, in occupation of the first floor of that house on a rent of Rs. 20/- per month. THE respondent served a notice (Ex. 8) dated 7-12- 1967 for demand and ejectment on the appellant on 11-12-1967, asking for five months' rent for the period July 1967 to Nov. 1967 which would work out to a sum of Rs. 100/-. According to the plaint allegations the defendant neither paid the rent nor vacated the premises within the time prescribed. Hence, he made himself liable for ejectment and the suit was accordingly filed. The defence of the appellant was that he had remitted the rent by money order for the months of July, August, Sept. and Oct. 1967, in each of the respective months when it fell due, that shortly before the receipt of the notice he also remitted a sum of Rs. 80/- by money order on 4-12-1967 and that even after the receipt of the notice he remitted another sum of Rs. 49/- by money order on 16-12-1967. The Courts below came to the conclusion that on receipt of the notice of demand the defendant failed to pay the rent for five months which the notice required him to pay, hence more than three months' rent was due on the date of notice and consequently the defendant had committed default and was liable to ejectment. The plaintiff, no doubt, made a general denial in the words 'that no rent was ever tendered to him by money order and he never refused to accept any money order'. But the finding recorded by the lower appellate Court is to the following effect : Month for which rent was remitted. Date of remitting rent. Result. 1. July, 1967 -8-67 Unknown 2. August, 1967 12-9-67 Refused 3. September: 1967 -10-67 Refused October, 1967 -11-67 Refused 4. Besides, as I have already observed above, a sum of Rs. 80/- was remitted by money order by the appellant on 4-12-1967, another sum of Rs. 49/- was also remitted by the appellant on 16-12-1967 and the results of those money orders were unknown. It would be clear at a glance that so far as the first money order dated 2-8-1967 relating to the rent of July 1967 is concerned, its remittance by the defendant is proved but neither the coupon containing the endorsement of acknowledgement was received back by the appellant nor the amount itself. The plaintiff, however, denied receipt of that amount. So far as the money orders for the months of August, September and October 1967 are concerned, there is evidence to prove that they were refused by the plaintiff. I do not find any reason to disturb the finding of fact recorded by the Court below so far as the refusal of the three money orders already mentioned, is concerned. The dispute has, therefore, arisen about the remaining three money orders of the dates viz. 2-8-1967, 4-12-1967 and 16-12-1967. The common feature of all these remittances is that the fact of each remittance has been established by the appellant's evidence but neither the money came back to the remitter nor was the money order coupon bearing endorsement of acknowledgment received by him. In this situation it is contended by the plaintiff-respondent that the payment of the aforesaid three amounts to him has not been proved and the appellant committed default in payment of rent which made him liable for ejectment.
(3.) SO far as refusal of the three money orders is concerned, the argument advanced on behalf of the respondent was that since the rent for the month on July 1967 had not been paid by the defendant (because payment of the amount remitted on 2-8-1967 by money order is not proved), the plaintiff was justified in refusing to accept the rent remitted for months subsequent to July 1967. If this argument be accepted, the respondent's further submission is that even if payment of Rs. 80/- by money order dated 4-12-1967 is assumed, it will liquidate only the liability of four months at the rate of Rs. 20/- per month and fall short of the amount claimed in the notice by Rs. 20/- i.e. one month's rent, and consequently the default would be proved and the liability for ejectment would be fastened on the defendant. Therefore, the vital question which emerges for decision is whether the appellant has failed to prove the payment of rent for July 1967 which he remitted by money order on 2-8-1967. If the payment of this amount is proved, then surely the plaintiff would not be entitled to refuse the later remittances and the academic question as to whether the landlord is entitled to refuse rent offered by the tenant on the ground that the previous rent has not been paid, need not be gone into. It has been proved by conclusive evidence that the appellant remitted on 2-8-1967 the rent for July 1967 by money order. The mere fact that the acknowledgment receipt was not delivered to the appellant would not justify the conclusion that the amount had not been received by the plaintiff. Once remittance is proved, the presumption would arise under S. 114 of the Indian Evidence Act that the ordinary course of events was followed and the amount must have been tendered to the addressee and received by him. Presumptions play a vital role in filling the hiatus in evidence where the common course of natural events, human conduct and probabilities make certain inferences prima facie well-founded. The regular course of business of post offices has been frequently pressed into service for raising a presumption under S. 114 of the Evidence Act. In Hari Har Banerji v. Ram Shashi Roy, AIR 1918 PC 102 it was held that if a letter properly directed, containing a notice to quit, was proved to have been put into the post office, it might be presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed. It is significant that in Hari Har Banerji's case the Privy Council stated the rule rather widely and held that such presumption was strengthened by the fact that an acknowledgment receipt signed on behalf of the addressee had been produced. It would be legitimate to deduce from the above observations of the Privy Council that even if such acknowledgment receipt was not forthcoming, the presumption would arise, unless rebutted. Hari Har Banerji's case was followed by the Orissa High Court in Madan Lal v. Union of India, AIR 1968 Orissa 234. In Kanak Lata v. Amal Kumar, AIR 1970 Cal 328 the question about the presumption relating to certificates of posting of letters given by postal authorities arose and their Lordships held that the certificate of posting not only raised the presumption that the letter was duly posted but also that the letter was received by the addressee and the mere denial on oath by the addressee on the receipt of the letter was not held as sufficient to rebut the presumption in favour of the receipt under S. 114 of the Evidence Act. It was observed (at p. 332) : "Not only is the husband a highly interested witness, his conduct before and after the passing of the decree for restitution of conjugal right makes it highly probable that he has suppressed the truth in regard to the receipt of the aforesaid three letters. We cannot attach any importance to his denial and we hold that he actually received the aforesaid three letters.";