Lmtiazi Begum vs Shams-Ud-Din
1986 Latest Caselaw 55 Del

JUDGMENT

Yogeshwar Dayal, J.

(1) This petition under Article 227 of the Constitution of India has been filed on behalf of the landlady and is directed against an interlocutory order dated 18th May, 1982 passed by the learned Additional Rent Controller, whereby the learned Additional Rent Controller, dismissed the application dated 30th October, 1981 filed in the trial court on 5th November, 1981. By this application the applicant/landlady sought to prove a photostate copy of the money order form of the original money order form and also the original acknowledgement of the money order purported to have been signed by the tenant.

(2) To appreciate the submissions of learned counsel for the parties, it is necessary to state a few facts.

(3) The case of the landlady is that a room measuring 14'x9' situate on the second floor of premises No. 1543. Suiwalan.Jama Masjid Delhi, was let out to the respondent/tenant for commercial purposes in [email protected] 200.00 per month. The tenant defaulted in paying the rents and a notice of demand dated 21st July 1978 was served on the respondent/ tenant and inspite of that since he failed to pay the arrears of rent, the petition for eviction was filed on or about 11th October, 1979 for nonpayment of arrears of [email protected] Rs.200.00 per month due from 1st January, 1977. The petition .was also filed on the ground of sub-letting.

(4) A written statement was filed on or about 19th September 1979 where it was pleaded that the rate of rent is Rs. 40.00 per month and not Rs. 200.00 as alleged by the landlady.

(5) Thereafter the landlady filed replication and in paragraph 11 thereof, the landlady reiterated that the tenant had paid the rent till the end of 1976 @ Rs. 200.00 per month and he is in possession of the receipts which were duly given to him by the petitioner. As the respondent started inducting sub-tenants into the demised premises, the petitioner called upon him to vacate the premises which he did not do and dispute arose between the parties in consequence whereof the respondent stopped payment of rent with effect from 1st January, 1977 and now to deprive the petitioner of her legitimate dues he has started falsely claiming that the rent of the demised premises ai agreed to between the parties is Rs. 40.00 per month. It was also pleaded that to begin with he started falsely claiming that the agreed rate of rent is Rs. 80.00 per month and to bolster his false claim that the rate of rent is Rs. 80.00 per month he sent to the landlady a money order for Rs. 240.00 as three months rent which was refused by the landlady and that the claim of the respondent that the rent is Rs. 80.00 per month is false and the respondent had not sent to the petitioner the entire amount of rent due from him till June 1978 at the rate of Rs. 200.00 per month.

(6) It will thus be seen that a positive case was made out in the replication, at the earliest state, about the alleged case of the petitioner how the tenant was trying to manoeuvre and create evidence that the rate of rent is Rs. 80.00 per month.

(7) The parties went on trial and the petitioner on the very first date of evidence summoned the Post Master. The post master deposed that he has not brought the record. Thereupon on the same date, the petitioner examined herself and for the next date i.e. 2/4/1981 summoned on Sh. Rajinder Mohan Saxena of Directorate of Postal Accounts and Sh. R.C. Verma, Inspector. Sh. Rajinder Mohan Saxena, who was summoned with the original records of money order, as mentioned in paragraph 11 of the replication, stated that the records have been destroyed. Sh. R.C. Verma Inspector, who was summoned with the register of money order issued to the post master for payment, stated that the money order was issued on 5th June. 1978 but the names of the remitter and the sender are illegible. It is in this state of evidence that before this date of evidence on 19th March 1981 the landlady filed the application Along with the photostat copy of money order to be produced and proved. On 2nd April, 1981 itself when the statements of the postal witnesses were recorded, the landlady pleaded for filing another application. The trial court allowed the application to be filed before 15th July, 1981 and it was stated in the order that if no application is filed by that date, the evidence of the respondent will be record. However, when the case was taken up on 15th July 1981 as directed in the earlier order dated 2nd April, 1981, the case was adjourned to 21st September, 1981 for respondents evidence. This was so directed on the ground that the petitioner failed to file the application within time which was allowed to be filed on 2nd April, 1981. On 21st September 1981 the case was again adjourned on the ground of the illness of the counsel for the petitioner to 2nd December, 1981.

(8) It is at this stage, before the start of evidence by the respondent, that the application dated 30th October, 1981 was filed on 5th November. 1981 before the court. This application was strongly opposed on behalf of the tenant and the trial court dismissed the same.

(9) In the application, the case of the petitioner was that to expose the false stand taken by the tenant as to the rate of rent, the petitioner had summoned the post office records relating to the said money order i.e. money order issued at G.P.O. on 5th June 1978, but it has since been reported that the same has been destroyed. It was also stated in the application that the petitioner had already placed on record a photostat copy of the money order which was procured by the petitioner at the time when the said money order was tendered to her. it was further stated that the petitioner's son Mohd Moiz has since found near the rags and junk thrown out by the respondent from the premises in dispute at the time of the general cleanliness of the demised premises on the eve of the last Id, the acknowledgement portion of the said money order which was sent back by the post office to the respondent, a Photostat copy of which was annexed. What is important is the allegation of the petitioner that this acknowledgement part was sent by the post .office to the tenant/respondent. It was pleaded that the said acknowledgement portion is the original of the acknowledgement of which photostat copy was already filed by the petitioner and the said acknowledgement portion also bears the signatures of the respondent. It was prayed in the application that she may be allowed to tender in evidence the said acknowledgement portion and the petitioner may be granted leave to recall and examine the postman Chhakkan lal and the petitioner's husband for proof of the photostat copy of the money order and the original acknowledgement. The petitioner also prayed for leave to examine her son regarding the discovery of the said acknowledgement form

(10) The trial court dismissed the application on the ground : "To my mind this plea 'of the petitioner appears to be fabricated and it does create a doubt regarding the manner in which the petitioner came into possession of such like document. This document cannot be said to be free from any doubt so it cannot be allowed to produce on record. The petitioner had also summoned a witness from the post office to prove these facts. That witness was also not of material help to the petitioner as he had not brought the summoned record and now the petitioner wants to produce on record the coupon which by no means he could be in his possession and the story put forward by him that he found in the rags after general cleanliness done by the respondent I find also is not believable, it is not believable that the petitioner would be searching the junks thrown by the respondent on the eve of Id. There appears to be hanky panky for the production of the documents. Hence I reject the application".

(11) In view of these observation of the learned trial court and in the absence of postal Rules as to how money orders which were sent and refused to be dealt with, I had summoned the relevant postal manual and any officer duly conversant regarding money orders from the post Master, General Post Office, Kashmere Gate, Delhi. In pursuance to that, I have examined today Mr. H.R. Kapur as a court witness. It came out in his evidence that the relevant rule regarding Postal Money orders is Rule 285 (3) Sub-rule (3) of Rule 285 reads as under :- "285.Unclaimed money orders, (1)................... (3) When the amount is repaid, the signature of the remitter should be taken only on the receipt portion of the order in the place for the signature of the payee. No signature should be taken on the acknowledgment portion of the money order, which should be detached by the paying office and filed with the office copy of the M.O. paid list. Before a money order is given to the postman for re-payment to the remitter, the M.O. Clerk should indicate in red ink on the acknowledgment portion thereof the words "To be retained in office". Only the coupon portion of the order shall be detached by the postman and handed over to the remitter".

(12) It is clear from this sub-rule that apart from the Coupon part of the money order, the back portion of the remaining portion of the money order has to be signed at one place and the whole remaining portion has to be returned by the postman to the Post Office. It also came in his evidence that when a 'payee' refused and the money order form Along with the money comes back to the remitter, the remitter is supposed to sign at one place on the back portion, of the money order form and that portion after tearing of the coupon part has to be sent to the post office. Therefore, it appears from his testimony that this coupon being produced by the landlord as having been recovered from the junks of the tenant shows that the same is coming from an unauthorised custody. When I took up the matter again afterlunch. I enquired again from the witness as to how it is possible that this type of document should be found with the remitter, if it is a genuine document. He explained that when a money order is sent and is accepted by a payee, the signatures of payee arc taken at two places on the back of the money order form. The coupon part of the money order form is given to the payee and rest of the money order form signed at two places, is sent to the post office. The post office tears the acknowledgment part of the money order and send it back to the remitter for showing the payment of the money order to the payee. He explained that it is possible that the postman who dealt the money order in dispute, was not well conversant with the rules and under wrong impression got signed the money form at two places from the remitter when it comes back after being refused by the payee and sent the entire money order form., after tearing the coupon part, to the post office and it is possible that the postal clerk, who, like the case where the money order is duly paid, sent the acknowledgement part to the remitter in the same way.

(13) If this statement had not been made today I have no hesitation in agreeing with the observations of the trial court.

(14) As per Rule 285(3) this type of acknowledgment cannot be in the custody of remitter after refusal of the money order but ought to be in the post office. It may be that this money order coupon form was got signed by the postman at two place at the back and in routine sent back to the postal authorities and the postal clerk in routine may have sent the acknowledgement part by post to the remitter

(15) This is not the stage to make any final decision regarding the genuiness or otherwise of the document is dispute because that will be at the later stage when the evidence is recorded. It cannot be said that the document which is coming from a wrong custody should always be a fabricated document The last portion of the deposition of Mr. Kapur corroborates the case of the petitioner as made in the application that this acknowledgment portion was received by the tenantry post from the post office but it can be established only by way of evidence.

(16) Mr. Chaudhary submitted that merely by suspicion of Mr. Kapur, this court cannot draw the indication that the acknowledgment part of the money order is being produced from a right custody. Mr. Chaudhary is right. No definite conclusion can be raised just now that can only be after the evidence is recorded and the document is allowed to be placed on record. I am impressed by the fact that this is the case of the landlady from the very beginning so much so he had given full details of it in the replication. The moment the case was put by the tenant that the rate of rent is Rs. 80.00 per month the landlady stated in the replication how the evidence was sought to be created by the tenant by sending money order of Rs. 240.00 as if it was rent for three months. The photostat copy of the money order and the acknowledgment part of the money order purported to be signed by the tenant was not sought to be produced first time in evidence as a new case. This was the case of the landlady from the very beginning. It is unfortunate that her attempt to get the money order proved failed when Shri Rajinder Mohan Saxena who was summoned from the post office stated about the destruction of records. Again her attempt to have this particular money order proved failed because the Postal Inspector Shri R.C. Verma, failed to read the entries in the register. It was in this light that when the petitioner failed in her attempt on 2nd April, 1981, she made a request that may be allowed to file an application which was ultimately allowed and was filed on or about 5th November, 1981.

(17) The trial court completely lost sight of the circumstances in which the document was sought to be placed and was carried away by the fact as if the same is coming from the wrong custody and, therefore, fabricated. This is matter, which is yet to be decided. Since the evidence of the tenant has not yet even started. I find that it will be in the interest of justice if the petitioner is granted an' opportunity to prove the photostat copy of the original money order and the original acknowledgement part of the money order purporting to be signed by the tenant. Interest of justice would be served by permitting it rather than throttling the evidence of the landlady which she was trying from the very first date. Without deciding the question whether this document has come from proper custody and without making any observation about the authenticity of this document I find that it is a fit case where the application dated 30th November. 1981 filed on 5th November, 1981 is ought to be allowed.

(18) Accordingly the revision petition is accepted and I would allow the application dated 30th October 1981, filed on 5th November, 1981 by the petitioner/landlady and further grant the relief prayed for in the revision petition.

(19) Parties arc directed to appear before the trial court on 24th February, 1986. The registry is directed to send back the records expeditiously so that the same may reach the trial court before the next date.

(20) On the facts of the present case parties are left to bear their own costs.