JUDGMENT : This is a tenant's second appeal from the concurrent decisions of the Courts below decreeing the landlord's suit for his ejectment from a house. The plaintiff respondent Anant Ram is the owner or a house in Muzaffarnagar of which the defendant-appellant Mababir Singh is the tenant. The plaintiff alleged that the appellant fell into arrears of rent for four months which he did not pay in spite of service of a notice of demand. He also alleged that the plaintiff had sub-let a portion of the house to two sub-tenants without his consent. The defendant resisted the suit and denied both allegations. He alleged that on receipt of the notice of demand he remitted the rent due by money order but the plaintiff refused to accept it and the remittance was returned by the post office with the indorsement that it had been refused. As regards the charge of subletting he admitted that the two persons mentioned in the plaint had stayed with him for sometime, but alleged that they were his quests and had gone away. Both the Courts below have held that the appellant did not pay the arrears of rent within the statutory period of one month from the date of demand and that he had sub-let a portion of the house to Chhota, the second defendant. The trial Court ordered his ejectment and the Civil Judge dismissed his appeal. He has come to this Court in second appeal.

2. I have heard Mr. S.J. Hyder for the appellant and Mr. N.S. Singhal for the respondent and also gone through the evidence. I am of opinion that the decision of the Courts below is erroneous.

3. On the questions whether the appellant had paid or tendered the rent within one month of demand, the following facts have been proved. On the 19th of June, 1959 the appellant received of the postman that it had been tendered but refused by the respondent, but the date of refusal did not appear on it. On this evidence both the Courts below took the view that the appellant had failed to establish that the money order was tendered before the 19th of July. The appellate Judge observed that neither the appellant nor the postman who gave evidence mentioned the precise date on which the money order was tendered, and, therefore, the appellant had not discharged the onus of proving that the money had been offered on or about the 19th of July. I am afraid the learned Judge was in error, because he overlooked that under S. 114 of the Indian Evidence Act there was a presumption that the remittance was tendered before that date. That section provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in then relation to the facts of the particular case. The section does not lay down any hard and fast rule with regard to the circumstances in which any fact or facts may be presumed to exist nor does it contain an exhaustive list of such facts, though it gives a few

illustrations from various walks of lire. The section, however, provides a guiding principle-namely, that the Court shall be guided by its own experience and knowledge of the common course of natural events, and public and private affairs. The learned Judge did not even consider whether on the facts of the case before him it could be presumed that the money remitted by the appellant on the 9th of July was tendered not later than the 19th of July. In my opinion, where a money order is remitted for delivery to an addressee residing in the same town, the

Court should presume, in the absence of any evidence to the contrary, that it was tendered, in the ordinary course-at any rate, not later than within 10 days. The learned Judge relied on a decision of my learned brother Oak in Saliq Ram v. Moti Lal, 1960 All LJ 459. But the facts of that case were quite different, and the headnote of the report is misleading. The landlord and the tenant lived in the same town, and the notice of demand was received on

Click Here to Read the rest of this document