JUDGMENT S.U. Khan, J.
1. This is tenants' writ petition arising out of suit for eviction and recovery of arrears of rent instituted by original landlord respondent No. 2 Ami Chand (since deceased and survived by legal representatives). Eviction was sought on the ground of default. Suit was registered as suit (SCC Suit.) No. 847 of 1983. Additional JSCC, Kanpur Nagar held that there was no default and tenants were entitled to the benefit of Section 20(4) of U.P. Act No. 13 of 1972. Ultimately through judgment and decree dated 29.5.1989 suit for ejectment was dismissed and suit for the withdrawal of deposited rent was decreed. Against the said judgment and decree original landlord respondent No. 2 filed SCC Revision No. 88 of 1989. IV Additional District Judge, Kanpur Nagar allowed the revision, set aside the judgment and decree passed by the trial court, refusing to decree the suit for eviction and decreed the suit for eviction also through judgment and order dated 2.8.1990 hence this writ: petition by the tenants.
2. Property in dispute is a shop. Admitted rate of rent is Rs. 75/- per month.
3. Notice of termination of tenancy and demand of rent was given on 18/20.4.1983. Copy of the said notice is annexure 1 to the writ petition. In Para 4 of the notice, it was stated that rent was due since 1,12.1982 to 15.4.1983, amounting to Rs. 337.50/. The said notice was replied by the tenants on 29.4/3.5.1983. In the said reply notice, it was stated that rent of December 1982 had been sent through money order which was refused by the landlord hence it was deposited before Musif in Case No. 4/70 of 1983 under Section 30 of U.P. Act No. 13 of 1972 and that in the said case rent till 31.3.1983 had been deposited: In Para 7 of the reply notice, it was further stated that even though no rent was due against the tenants, however by way of abundant precaution rent from 1.12.1982 till 30.4.1983 amounting to Rs. 375/- was being sent through draft, which was annexed along with the reply notice.
4. Thereafter suit for eviction and recovery of arrears of rent giving rise to the instant writ petition was filed in the year 1983.
5. Tenants deposited the rent in Munsif's court under Section 30 of the Act up till 31.8.1988 (suit giving rise to the instant writ petition decided on 29.5.1989). Deposit under Section 30 of the Act after receiving notice dated 18/20.4.1983 was illegal. After receiving notice tenant is not entitled to continue to deposit the rent under Section 30 of the Act. Further as held by a Division bench in Haider Abbas v. A.D.J 2006 Alld. Daily Judgments 197 deposit of rent after receiving summons of suit for eviction is also illegal.
6. The draft of Rs. 375/- was not encashed by the landlord. Landlord took up the case that he did not receive the draft. Tenants filed bank certificate to show that the said draft was got prepared. There is no dispute that it was not encashed. Landlord also denied that the rent of December 1982 was tendered to him through money order or directly.
7. As far as the question of payment of water tax is concerned, both the courts below rightly held that it could not be considered as in the notice no demand for the same had been made. This finding is quite correct.
8. However in respect of receipt of draft of Rs. 375/-, trial court did not record any categorical finding. Trial court held that there was no default and tenants were entitled to the benefit of Section 20(4) of the Act as they had deposited the rent under Section 30 of the Act.
9. Revisional court did not specifically disbelieve the assertion of the tenants that they had remitted the rent through draft of Rs. 375/-. In respect of the said draft only two things have been stated by the revisional court one is that the assertion of the tenants that they sent the amount through draft clearly amounted to admission that they had not paid the said rent earlier hence the assertion that they had sent the rent of December 1982 through money order stood disproved. The second thing which has been stated by the revisional court is that even though notice was given by an advocate of Kanpur but in the notice address of the landlord had been shown of Meerut hence tenants were not authorized to send the draft to the advocate at Kanpur and they should have sent the same to landlord at his Meerut address which was given in the notice. The Supreme Court in AIR 1997 SC 2437 M.R. Gupta v. V.P. Mogul has held that tendering the rent through cheque to the advocate giving notice on behalf of the landlord is valid tender. In any case draft was in the name of the landlord hence there was no harm in sending the same to the advocate who had given notice on behalf of the landlord.
10. In this regard, it is also important to note that in the reply notice, receipt of which was admitted by the landlord, it was clearly mentioned that draft of Rs. 375/- was being sent. No reply to the said reply notice was given complaining that along with the said reply notice draft was not sent.
11. The view of the revisional court that in case rent had already been sent through money order then there was no sense in remitting the same again through draft, is clearly erroneous. In the reply notice, it was categorically said that even though rent had been remitted through money order which had been refused by the landlord still by way of abundant precaution (to end the controversy) the said rent was again being sent through draft. This stand was perfectly permissible for the tenants rather it should extra care of the tenants to pay the rent.
12. The fact that landlord did not get the draft encashed can not make the tenants defaulters. It has been held by a full bench authority of this Court reported in 1968 AWR 167 Indrasani v. Din Ilahi (followed in G. Singh v. A.D.J 2000(1) ARC 653 (FB)) that in case rent sent through money order is refused by the landlord then rent remains in arrear but tenant does not remain in arrears of rent. Similarly the effect of refusal by the landlord to encash the draft will be that the said rent remains in arrears but tenant does not remain in arrears of the said rent. In view of this, suit was not maintainable as under Section 20(2)(a) of the Act default of four or more months is a ground of eviction only if inspite of the notice of demand of the said rent tenant refuses to pay the said rent.
13. In respect of the validity of initial deposit made by the tenant before receipt of notice under Section 30 of the Act, revisional court held that it was not proved that landlord had refused to accept the money order through which rent was sent hence even the initial deposit under Section 30 was invalid. Receipt of money order as well as its coupon containing the endorsement of refusal made by the Postman were filed by the tenants.
14. In respect of money order receipt, revisional court held that even though it contained the name of the landlord but the tenant who examined himself as witness did not state that it was sent to the landlord. Revisional court also held that the said receipt being public document was quite admissible. The revisional court in this regard indulged in hair spitting. Money order receipt issued by the Post Office containing the name of the landlord was sufficient to prove that money order was sent. In respect of endorsement of refusal by the Postman, the revisional court held that the signatures of Postman were not legible. Endorsement of refusal on money order coupon can be made only by the Postman. Judicial notice may be taken of the fact that on such endorsements Postmen do not make such signatures from which their complete names may be discerned. The view of the revisional court: that refusal of money order by landlord was not proved because tenants did not examine the Postman is also not correct. Legally there is a presumption of service/ tender in case postman reports refusal by address. In respect of endorsement of refusal by the Postman, there is no necessity to examine the Postman to prove that. If there is any such duty them it is of the person denying tender by the postman (vide Basant Singh v. R.C. Mission AIR 2002 SC 3557).
15. Accordingly, the finding of the revisional court that money order was not refused by the landlord is also erroneous in law.
16. As entire rent due till the date of notice had already been validly deposited under Section 30 of the Act, hence notice of demand was bad in law. At the time of notice, tenants were not defaulter for four or more months. On this ground also suit was liable to be dismissed.
17. Accordingly, suit for eviction was not maintainable on two grounds. Firstly at the time of notice tenant was not defaulter as he had already validly deposited the rent under Section 30 of the Act. Secondly after receipt of notice rent was remitted through draft.
18. Writ petitioner is therefore allowed.
19. Judgment and order passed by the re visional court is set-aside. Judgment and decree passed by the trial court is restored.
20. I have held in Khursheeda v. A.D.J 2004(2) ARC 64 that while granting relief to the tenant against eviction from a building covered by Rent Control Act, writ court is empowered to enhance the rent to a reasonable extent.
21. Property in dispute is a shop containing one room and verandah and is situate in Kanpur, which is most expensive city of Uttar Pradesh. Existing rent of Rs. 75/- per month is virtually as well as actually no rent.
22. Accordingly, it is directed that with effect from February 2006 onwards tenant petitioner shall pay rent to the landlord respondent at the rate of Rs. 750/- per month inclusive of all taxes etc. No further amount shall be payable by the tenant to the landlord.