GUPTA,j. - (1.) HEARD learned counsel for the appellant.
(2.) BOTH the learned courts below have dismissed the plaintiff's suit for eviction filed on the ground of default in payment of rent and non user of the premises. Regarding default, it was claimed that the rent is in arrear since 26. 01. 1989. The suit has been filed on 21. 01. 1993. It has been found by the learned courts below that the rent was tendered by the defendant by Money Order Ex. A/2, Booking Receipt thereof is Ex. A/1, and that was refused by the plaintiff, and thereafter it has been regularly deposited in the Court under Section 19-A. The learned counsel has shown me the originals of the Ex. A/1 and A/2. True it is that on Ex. A/1. the detailed address of the plaintiff is not mentioned, but then it purports to be a receipt for booking a Money Order No. 5295 for a sum of Rs. 750/- on 29. 1. 92 as appears from the postal seal of the Post Office. Then regarding Ex. A/2, it is contended that this paper does not bear any seal of the Post Office of destination nor does it bear any endorsement of refusal to receive the Money Order by the addressee. Suffice it to say that the plaintiff, while in the witness box, in his examination-in-chief has not said a word about any default except deposing a sentence to the effect *** Then in cross-examination, he has denied the suggestion about the defendant having sent the Money Order and has also denied to have refused to accept it. Then the cross- examination is directed towards the aspect that the plaintiff's husband PW-1 is always available at Home and in the evening reports the events of the day.
(3.) AS against this, the defendant has appeared as DW-1 and has deposed about having sent the rent by Money Order Ex. A/1, Ex. A/2, and thereafter to have deposited the same in the Court, and has proved various documents about deposit in the Court. The defendant was cross-examined on the said of the plaintiff, and it has not been suggested to him that as a matter of fact, he never sent this Money Order or that it was not addressed to the plaintiff, rather the address, on which, the Money Order was sent was asked, which the defendant detailed. This is the only oral evidence on record. In this background, a look at the memo of issues shows that on the question of default, there were two issues framed, being issue No. 1 and 3. Issue No. 1 comprehended the question as to whether the defendant has committed second default by not paying rent since 26. 01. 1992. The burden of this issue was placed on the plaintiff. While the issue No. 3 comprehended the question as to whether the plaintiff declined to receive the rent, whereupon, it was deposited in the Court under Section 19-A by the defendant. The burden of this issue was placed on the defendant. It is clear on record that after the defendant led evidence on issue No. 3 by proving Ex. A/1 to Ex. A/13, no evidence has been led by the plaintiff in rebuttal to disprove or controvert or explain Ex. A/1 and Ex. A/2. It is not for me to catalogue as to what could have been the rebuttal evidence, from the records of the Post Office i. e. the Original Money Order or Postman or the like, but then, the fact remains that the plaintiff has led no evidence in rebuttal. ;