U.C. Srivastava, J. - (1.) THIS writ petition is directed against the judgment and decree passed by Second Additional District and Sessions Judge, Faizabad, dated July 24, 1980 dismissing the revision application filed by the landlord against the judgment and decree passed by the Judge, Small Causes Court, dismissing his suit for ejectment of the tenant opposite party No. 3. The opposite party No. 3 was tenant in the premises in dispute at a monthly rent of Rs. 10 which was enhanced to Rs. 12.50 with effect from July 15, 1972. On July 7, 1973, the landlord sent a registered notice' for demand as well as termination of tenancy which was served upon, the tenant on July 9, 1973. According to the landlord as there was no compliance with the notice of demand, he filed a suit for ejectment in the court of Judge, Small Causes Court, Faizabad for eviction as well as for arrears of rent amounting to Rs. 164, 50 and for future damages. The suit was contested by the defendant and it was pleaded on his behalf that in fact after receipt of said notice money order was sent by him at the address mentioned in the notice of termination of tenancy but the landlord avoided to receive the money order which was ultimately returned with the remark "Prativadi ke Naam va Pata ka Koi Aadmi Nahi Paya Jatai". The address given was "Parivar Niyojan, Sawasbha Sabayak, Pariwar Niyojan Up -Kendra, Khajurhat, Tahsil Bikapur, District Faizabad. The landlord denied that any such money order was sent 'to him. Before the Judge, Small Cause Court, the plaintiff landlord -admitted that the address from which notice was sent by him was correct and he stayed there upto July 10, 1978 meaning thereby that the money order was sent to him at the same address which was given in his notice and he was staying at that address also, then, as the money order was sent by the tenant, the landlord either did not accept it or refused to accept the same and as such the tenant could not be termed as defaulter. Consequently no decree for eviction against him could be passed. The appellate court also took the same view. Section 20 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 provides for eviction of tenant on various grounds. The relevant ground contained in Section 20(2) reads as under: (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely - - (a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Thus the Act only provides that in case there is failure to pay the rent to the landlord within a period of one month from the date of service of notice upon him, the tenant will have to face eviction. The question is that if the tenant has sent a money order within the time and in normal course money order should reach within thirty days, the same returns back from the very same address, could it be said that payment has been made. The Act, does not provide for actual receipt of rent within this period by the landlord. The only emphasis is on the word 'pay'. Under the U.P. (Temporary) Control of Rent and Eviction Act, 1947, the requirement for ejectment was that incase the tenant fails to pay the arrears of rent for a period of three months within a period of one month from the date of notice. A Division Bench of this Court in Abdul Baqi v. Akhloq Ahmad, 1962 ALJ 1146 while dealing with a case in which the money order came back with the enforcement of refusal to accept the same, it was held: - - In a case where a person is required to 'make a payment to another the duty of the former is to go to the house of the latter and tender "payment, and if there be clear evidence that he did so it must beheld that there was full compliance with the requirement of making the payment provided that this was done within the time prescribed.
(2.) IN the above case, the division bench held that as the money order was sent and the address given was correct, it fulfilled the requirement of law. The Division Bench held that when the law contemplates payments within the time laid absolves the person bound to pay from any liability ensuing by reason of non -payment, irrespective of the question whether payment could not in fact be made because the payee refused to accept or was absent from down in the notice, it must be held that tendering of full payment within that time is compliance with the requirements of the notice it was further observed that there is ample authority for the proposition that offer of payment at any reasonable hour at the normal place of residence of the person who is entitled to receive payment his residence. The Bench in that case held that tenant was not defaulter and he cannot be evicted as payment was made by him. Similarly under the old Act in the case of A.K. Bhattacharya v. Smt. Rukmani Devi : 1972 ALJ 233 this Court held that if the tenant sends the arrears of rent by postal money order within the prescribed period of one month and the money order returns with endorsement "out of station, so left" the presumption will be in favour of the tenant under Section 114 of Evidence Act and said presumption can be rebutted by the landlord and mere denial by him that he was actually in station will not be sufficient to rebut that presumption. The court held that under the circumstances of that case when the money order returned back with the endorsement out of Section, so left," it will be deemed that payment has been made and the tenant will not be deemed to be defaulter.
(3.) A Full Bench of this court in Bhikha Lal v. Munne Lal : AIR 1974 Alld. 366 which was a case under the U.P. (Temporary) Control of Rent and Eviction Act, it was held: Where the tenant had an implied, authority from the landlord to pay the amount by means of a money order, as soon as the tenant handed over the amount to the post office, to be remitted by money order, he was discharged of his obligation in that respect. The tenant had no control over the post office and if there was any delay in transit, the tenant cannot be held responsible for it and the landlord cannot be heard to complain about it. The tenant could not be said to have committed a default under Section 3(1)(a) in respect of the payment of rent which he sent to the plaintiffs -landlords by a money order well within time but which had reached the landlords after the expiry of thirty days. On the basis of full bench decision, it was contended that the payment should have been made by the tenant to the landlord personally. But as there' was no demand by the landlord that it should 'be paid to him personally, it could have been paid by sending money order as well. Reliance was further placed in the case of Roshan Islam v. District Judge, Bulandshahr : 1982 (8) ALR 627 in which case emphasis was laid on the word 'failed' and it was held that if the tenant sends money order within the time which reaches the landlord at the address given by him in the notice and if the landlord refuses to accept the some, or was not available or in correct ground there was no such person, the money order returned back, it cannot be said that tenant failed to pay the rent within thirty days of demand and as such tenant cannot be deemed to be defaulter liable for eviction.;