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1971 Supreme(All) 265
Allahbad High Court
K.B.ASTHANA
Kiran Bahadur Singh - Appellant
Versus
Harikrishan Mathur - Respondent
Decided On : 12/09/1971
Gopal Behari and S.N. Agrawal, for Appellant; K.C. Agrawal, for Respondents.
Payment of arrears of rent to a co-owner of the property constitutes compliance with a notice of demand under Section 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947.
Headnote:
U.P. (Temporary) Control of Rent and Eviction Act, 1947 - Section 3(1)(a) - Compliance with Notice of Demand of Arrears of Rent - Tender of Rent to Karinda - Payment to Co-owner - Presumption of Tender Under Section 114 of the Indian Evidence Act.
Fact of the Case:
A tenant received a notice under Section 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, demanding payment of arrears of rent within one month. The tenant claimed to have tendered the arrears to the landlord's Karinda, but the landlord denied receiving any payment. The tenant also claimed to have paid the arrears to one of the co-owners of the property, but the landlord argued that this did not constitute compliance with the notice.
Finding of the Court:
The court found that the tenant had failed to prove that he had tendered the arrears of rent to the landlord's Karinda. However, the court held that the payment to the co-owner was a valid discharge of the tenant's liability, as she was a co-owner of the property and therefore entitled to receive rent. The court also held that the presumption of tender under Section 114 of the Indian Evidence Act did not apply in this case, as the tenant had not shown that the money order had been tendered to the landlord within three or four days of being sent.
Issues: 1. Whether the tenant had tendered the arrears of rent to the landlord's Karinda? 2. Whether the payment to the co-owner constituted compliance with the notice of demand? 3. Whether the presumption of tender under Section 114 of the Indian Evidence Act applied in this case?
Ratio Decidendi: 1. The court held that the tenant had failed to prove that he had tendered the arrears of rent to the landlord's Karinda, as the evidence of the tenant and his witness was not credible and the landlord's Karinda denied receiving any payment. 2. The court held that the payment to the co-owner constituted compliance with the notice of demand, as she was a co-owner of the property and therefore entitled to receive rent. 3. The court held that the presumption of tender under Section 114 of the Indian Evidence Act did not apply in this case, as the tenant had not shown that the money order had been tendered to the landlord within three or four days of being sent.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the lower appellate court, and restored the judgment and decree of the trial court, which had dismissed the landlord's suit for eviction.
2. Sri Gopal Behari, learned counsel appearing for the defendant appellant agitated a large number of questions of law in support of the appeal, but I think for the purpose of deciding this appeal I need not notice all the grounds urged in support of the appeal except the one on the question of the defendant tenant having failed to pay the arrears of rent demanded by the plaintiffs-landlords by a notice under Section 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, as my answer to that question would be conclusive of the appeal.
3. Admittedly the plaintiff land-lords who are real brothers inherited the house in dispute from their ancestors, and so did the defendant tenant inherited the tenancy from his predecessors, father and uncle. It is further admitted that beside the defendant tenant his brother is also living in the house in suit. On 15-11-1966 a composite notice signed by a lawyer on behalf of the plaintiffs landlords addressed to the defendant tenant was sent demanding the payment of arrears of rent within one month of the receipt thereof, terminating the tenancy and calling upon the tenant to vacate the house on the expiry of one month from the receipt thereof. This notice was served on the tenant on 17-11-1966. On 9-12-1966 a letter was sent by the tenant to the landlords informing them that the arrears of rent had been remitted by a money order on 7-12-1966 to one of the landlords on his Delhi address. In this letter the tenant admitted that he was the tenant of the landlords since the time of the grandfather of the landlords. This letter was received by the landlords on 15-12-1966 but they filed the suit giving rise to this appeal on the allegation that the tenant having defaulted in payment of the arrears of rent within one month of the service of notice and his tenancy having been terminated, he was liable to be evicted and pay arrears of rent and damages. It was alleged in the plaint that no money order was ever received by the landlords in payment of the arrears demanded. The suit was contested by the tenant of the pleas, inter alia, that the suit not having been brought by all the landlords was not maintainable, that the suit having been brought for eviction of only one of the co-tenants was defective and liable to be dismissed; that a money order dated 7-12-1966 was sent to one the landlords at his Delhi address after the tender of the amount to the Karinda of the landlords at Agra on 6-12-1966 had been refused; that in any case on 16-12-1966 the whole amount of arrears was paid to Smt. Manorani, one of the co-owners of the house in suit and thus the notice of demand of arrears was complied with and the suit was barred by Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act.
4. As already said above, I am not inclined to consider the arguments advanced on behalf of the appellant on the question of maintainability of the suit though there may be some tenability in those arguments since I have, on a consideration of the material on record and after hearing the able arguments of the learned counsel for the bar, come to the conclusion that the findings of the lower appellate Court on the question of compliance by the tenant with the notice of demand of arrears of rent are untenable and liable to be reversed. The first point which I considered was as to the correctness of the finding of fact recorded by the court below on the factum of the arrears of rent having been tendered to Deodutt Gupta, the admitted Karinda of the land-lords at Agra on 6-12-1966. Deodutt Gupta was produced as a witness by the plaintiffs landlords. He stated that neither the tenant nor anyb
