# Sri Nanhey Khan v. The Ist A.D.J. Farrukhabad and others

- **Citation:** (2000) 3 ILRA 239
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-nanhey-khan-v-the-ist-a-d-j-farrukhabad-and-others-39474
- **Pages:** 5

## Text

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By the Court

1. The petitioner is aggrieved
against the decree for recovery of arrears
of rent, ejectment and damages passed
against him by the courts below.

2. The plaintiff-respondents no.3
and 4 filed S.S.C. Suit No. 115 of 1990
against the petitioner for recovery of
arrears of rent, ejectment and damages
with the allegations that the petitioner was
tenant at monthly rent of Rs.100/- and Rs.
30/- per month as electric charges. He had
not paid rent for the period 1.9.1979 to
30.6.1980 amounting to Rs. 1000/- and
electric charges amounting to Rs. 300/-.
He
sent
a
notice
dated.9.7.1980
demanding this amount which was served
on him on 11.7.1980 but inspite of service
of notice he did not pay the amount. The
3All] Sri Nanhey Khan V. The Ist A.D.J. Farrukhabad and others 240
 petitioner
denied
the
averments
made in the plaint. His case was that the
rent was Rs. 100/- per month inclusive of
electric charges. He had sent a money
order on 14.7.1980 for a sum of Rs.
1000/- but it was refused by the plaintiff,
Prem Chandra. The trial court decreed the
suit on 17.12.1981 on the finding that the
landlords had not refused to accept the
money order alleged to have been sent by
the petitioner. This judgment has been
affirmed in revision by the respondent no.
1 on 6.8.1983. These order have been
challenged in the present writ petition.

3. The core question is whether the
petitioner
has
committed
default
in
payment of arrears of rent. Admittedly the
petitioner had sent money order on
14.7.1980 for a sum of Rs. 1000/-. This
amount covered the period for which the
notice was sent. The money order,
however,
is
alleged
to
have
been
delivered to Prem Chandra, the plaintiff,
after the period of one month. In Full
Bench decision of this Court in Bhikha
Lal & others V. Munna Lal, 1974 AWR
294, the question referred was whether
the tenant could be said to have
committed default under Section 3(1)(a)
of U.P. (Temporary Control of Rent and
Eviction) Act, 1947 in respect of payment
of rent which he had sent to a landlord by
money order well within time but had
reached the landlord after expiry of 30
days. The Court answering the said
question held that if the landlord has
demanded
the
arrears
through
the
registered notice, the amount sent by
money order there, will be implied
authority to the tenant to send the amount
through the postal agency and if the
tenant sends the amount within the time
prescribed in law to the landlord, unless
he withdraws it, the tender will be valid
tender to the landlord within time even if
the money order does not reach him
within the prescribed time under law. It
was observed as Under:-

" Thus, assuming that by reason of sec.
44(1) of the Post Office Act, the post
office is the statutory agent of the tenant,
it can still be held to be the agent of the
creditor also provided the circumstances
of the case justify that inference. We are
thus free to consider the question before
us unhampered by Sec. 44(1) of the Post
Office Act."

"Thus, it appears to me that the Court in
this case inferred an implied authority to
the debtor to send the cheque by post
merely because a demand had been made
by post. This principle to my mind is
based on sound logic. If a trader sends me
a reminder of an outstanding bill through
a messenger, in the absence of any
intention expressed to the contrary. I
believe I would be justified in assuming
that the trader, by implication has
authorised me to send the amount
outstanding
through
that
messenger.
Extending this principle, if a creditor who
resides in a different town, makes a
demand from his debtor by means of a
letter dispatched through the post he
impliedly invites the debtor to meet his
obligations through the post. In this
connection it may be borne in mind that
"Government exercises a governmental
power for the public benefit in the
establishment and operation of the postal
money order system and is not engaged in
commercial transactions, notwithstanding
it may have some aspects of commercial
banking."

4. In Smt. Priya Bala Ghosh and
others
v.
Bajranglal
Singhania
and
241 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
another, AIR 1992 SC639, where the
tenant had remitted the money order
within time but reached to the landlord
after the outer limit of time fixed by the
law, the tenant was not held defaulter.
The Supreme Court held that he law
envisages that remittance of money order
must be made before the last day runs out
prescribed by the statute. The delay in
reaching the money order to the landlord
may be for various reasons which may not
be under the control of the tenant and in
those circumstances he cannot be held to
be defaulter in paying rent within time
prescribed by the statute.

5. Admittedly the petitioner had
remitted the money order for a sum of
Rs.1000/- the demand made by the
plaintiff-respondent, within one month
from the date of service of notice, he
cannot be held to be defaulter.

6. Another question is whether the
money order was tendered to the plaintiffs
by the postman concerned. The petitioner
has filed money order coupons,Ext.A-36
and Ext A-37. It was addressed to Prem
Chandra, one of the plaintiffs. The coupon
contained endorsement of refusal by the
addressee. Prem Chandra appeared as
witness and denied that he refused to
accept
the
money
order
and
the
endorsement of the postman was wrong.
None of the parties had examined the
postman. One view is that the mere denial
by a party that he never refused to accept
the money order or any letter rebuts the
presumption contemplated under Section
114(1) of the Evidence Act because the
person cannot lead negative evidence
except to say that he did not receive the
letter or money order alleged to have
tendered to him. The other view is that
mere denial is not sufficient to rebut the
presumption because the man is interested
to deny a fact which is against him. A
large number of decisions have been cited
in support of rival contention.

7. In Wasu Ram v. R.L. Sethi and
another, 1963 AWR 472,where the
landlord was alleged to have refused
money order and deposed that he never
received the money order, the Court held
that the presumption was not rebutted. In
Salik Ram Sahu and others v Bindeshwari
Ram Rauniyar, 1965 ALJ 839, it was held
that a bare denial by the addressee who
stood to profit by his denial and therefore
had all the motive in the world to deny
will
not
necessarily
weaken
the
presumption created by the endorsement
"refused", and that if the addressee states
on oath that he never received the
communication, the Court must decide
after considering all the surrounding
circumstances, whether he should be
believed. Similar view was taken in Asa
Ram v Ravi Prakash AIR 1966 All 519.

8. In Jamal Khan and others v. Haji
Yusuf
Ali
and
others,
1978
U.P.R.C.C.498, it was held that the
presumption stood rebutted on the denial
by the addressee on oath but veracity of
the statement must be considered by the
Court on the light of evidence on record
and the conduct of the party concerned.
Similar view has been expressed in Smt.
Bachchi Devi and another v. Ist Addl.
District Judge and others 1983(1)ARC
849; Ramesh Chandra v. Gyan Chandra
and another's, 1985 (1) ARC 13; Dharam
Pal Tyagi v. Anil Kumar, 1986 (2)AR
121; and Mahabir Prasad Agarwal v. Brij
Nath Gigras, 1989 (1) ARC 413

9. The Full Bench in Ganga Ram v.
Smt. Phulwati, AIR 1970 Alld. 446,has
3All] Sri Nanhey Khan V. The Ist A.D.J. Farrukhabad and others 242
held that it is not necessary to produce
and examine the postman to prove the
endorsement of refusal. The controversy
in regard to presumption has been
considered by the Apex Court in Anil
Kumar v Nanak Chandra Verma AIR
1990 SC 1215,and taking into account
both the views held that bare statement of
tenant on oath denying tender and refusal
to accept delivery is not sufficient to rebut
presumption.
The
contrary
view
expressed in Shiv Dutt Singh v Ram Dass,
AIR 1980Alld 280 and Jagat Ram Khullar
and another v Battu Mal, AIR 1976 Delhi
III that bare statement of tenant was
sufficient to rebut the presumption of
service was not accepted. The Supreme
Court observed:-

"In our opinion there could be no hard
and fast rule on that aspect. Unchallenged
testimony of a tenant in certain cases
maybe sufficient to rebut the presumption
but if the testimony of the tenant itself is
inherently unreliable, the position may be
different. It is always a question of fact in
each case whether there was sufficient
evidence from the tenant to discharge the
initial burde."

10. Once the tenant has remitted the
money and there is nothing to show that
the remitter colluded with the postman
who got the money order returned to him
or there is any other circumstance
indicating that the money order is
returned for other reasons that the remarks
made by the postman, the presumption
will be that the money order was tendered
to the addressee. The petitioner had sent
the money order within time in pursuance
of the demand notice. There may not be
any intention, unless there is any evidence
to the contrary that he wanted that the
amount remitted by the money order
should not be received by the addressee.

11. The nest submission of the
learned counsel for the petitioner is that
the presumption under Section 114 of the
Evidence Act and Section 27 of the
General Clauses Act can be raised only
when it is proved that it was properly
addressed to the person and placed
reliance upon the decision Dharam Pal
Tyagi v. Anil Kumar, 1986 (2) ARC 121,
wherein it was held that before any
presumption could be raised, it has to be
proved that it was properly addressed to
the addressee. There is no controversy on
this legal position. (The petitioner had
filed the coupon. There are three parts of
the money order form. One is returned to
the remitter but the other part which is
sent to the addressee was not on the
record. The postal remark was that it was
refused. If the address was incomplete it
could be returned to the remitter with the
endorsement
that
the
address
was
incomplete. The courts below without
considering this aspect held that the
address was incomplete.)

12. In view of the above the writ
petition is allowed. The order dated
6.8.1993 is quashed. Respondent no. 1
shall decide the revision afresh keeping in
view the observation made above and in
accordance with law. In the facts and
circumstances of the case the parties shall
bear their own costs.
Petition Allowed.
243 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
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By the Court

1. Above mentioned five Special
Appeals arise from Writ Petitions under
Article 226, Constitution of India, which
were filed in this Court due to dispute
between Smt. Shashi Saxena (present
appellant) and one Smt. Kusum Singh
both Assistant Teachers in Shree Teeka
Ram Girls Inter College, (Called the
College) a 'recognised' girls intermediate
college
receiving
'grant-in
aid'
as
contemplated under U.P. Intermediate
Education Act, 1921 (as amended up-to
date). Admittedly, The U.P. High School
and Intermediate College (Payment of
Salaries
of
Teachers
and
Other
Employees) Act, 1971,U.P.Act No. 24 of
1971
and
U.P.
Secondary
Service
Commission Act, 1982 U.P. Act No.5 of
1982 (as amended up to date) are
applicable to the College

Dates in chronological order are
given
hereunder
to
appreciate
the
controversy between the parties:-

24.09.85
One Shashi Kant Sharma -
Assistant Teacher - C.T. Grade-Promoted
adhoc-as Assistant Teacher -(L.T. Grade)
regularized w.e.f. 07.08.1995 vide order
dated 29.01.96. Writ Annexure9P 49.
Cancelled on 12.02.96 Writ Annexure
10P.52.

03-10-85
Kusum
Singh
(R-6)
appointed directly on adhoc basis- against
short-term vacancy on the aforesaid post
of Assistant Teacher -C.T. Grade (Caused