' The first respondent, Babu Nawab Din, hereinafter referred to as the respondent, made an application against the petitioner, Hakim Fazal Din, for his eviction from certain premises alleging, inter alia, that he (petitioner) had committed default in the payment of rent. His application was dismissed by a Rent Controllor. The respondent, therefore, filed an appeal which was accepted by a District Judge holding that the petitioner had not paid or. Tendered rent for period from September to December, 1970, in time. The learned appellate authority, therefore, ordered eviction of the petitioner. Hence this writ petition by him.
2. Learned counsel for the petitioner contended that the petitioner had produced postal certificates showing that rent for the months of September, 1970, October, 1970 and November, 1970 (together with rent for December, 1970) was remitted to the respondent on 5th October, 1970, 3rd November, 1970 and 5th December, 1970 respectively but the said certificates were not duly considered by the learned District Judge while deciding the appeal. It was pointed out by the learned counsel that according to the learned District Judge, rent for the said months of September, October, November and December, was required to be paid on the first day of the next following month but as the money orders were not issued accordingly they were of no avail to the petitioner. The tenancy involved in this case was initially created for eleven months by means of a rent deed. It was stipulated in the rent deed that rent shall be paid on the first day of each month. The period for which the tenancy was created has since expired. It is not disputed that despite the running out of the initial period of tenancy the terms and conditions embodied in the rent deed govern tenancy between the parties. In view of this, it was urged by learned counsel for the petitioner that the petitioner could pay rent for a month within first fifteen days of the next month and since he had tendered rent for each of the above months within the aforesaid period of fifteen days he was not a defaulter. In other words, according to him, the view taken by the learned District Judge that with a view to avoiding the allegation of default the petitioner ought to have paid or tendered rent for each month on the first day of the succeeding month was erroneous.
3. In reply, it was maintained by the learned counsel for the respondent that the postal certificates did not form part of evidence and therefore, they could not be taken into consideration. According to him even if it was assumed that the learned District Judge had not correctly understood the period during which the rent in dispute could be paid or tendered, it would be of little consequence.
4. Admittedly, the postal certificates in question were not produced in evidence. After the parties had closed their evidence the petitioner had made an application to produce the certificates as additional evidence but his application in this behalf was dismissed. The certificates, therefore, do not form part of the evidence and cannot be taken into consideration for deciding the question of default. In this view of the matter, allowing of the grace period of fifteen days to the petitioner, as claimed by the learned counsel, would not be of any use to him.
5. The only other evidence produced by the petitioner was his own statement to the effect that since the respondent had declined to receive the rent in question, he had deposited the same with the Rent Controller.
' The deposit was made by him in the month of January, 1971. Evidently that deposit was made long after the expiry of the grace period. It is. Therefore, of no avail to him. In his statement the petitioner did not say as to how and when he had tendered the rent before the same was deposited by him.
Since the plea of tender was raised by the petitioner it was for him to specify the point of time when the tender was made but as he had failed to do so it cannot be said, on the basis of his oral testimony, that the tender was made in time. The oral evidence of the petitioner is, therefore, neither here nor there.
6. In view of what has gone above, no valid exception can be taken to the finding of the learned District Judge that the petitioner was a defaulter. I, therefore, dismiss this writ petition with costs.
The impugned order shall, however, not be executed against the petitioner for four months.