Allahabad High Court
Krishna Kumar Gupta vs Manoj Kumar Sahu on 6 August, 2022
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On. 18.02.2022 Delivered On. 06.08.2022 Case :- S.C.C. REVISION No. - 144 of 2018 Revisionist :- Krishna Kumar Gupta Opposite Party :- Manoj Kumar Sahu Counsel for Revisionist :- Kiran Kumar Arora,Abhishek Tripathi Counsel for Opposite Party :- Saurabh Srivastava,Rakesh Prasad,Ranjeet Yadav Hon'ble Neeraj Tiwari,J.
Heard Sri K.K. Arora, learned counsel for the revisionist and Sri Rakesh Prasad, learned counsel for opposite party.
Present revision has been preferred challenging the judgment and decree dated 03.10.2018 passed by Additional District and Sessions Judge/ F.T.C., Kanpur Nagar in S.C.C Suit No. 165 of 2015.
Learned counsel for the revisionist submitted that revisionist is tenant and suit for eviction being SCC Suit No. 165 of 2015 was filed after sending notice dated 6.4.2015 through registered post as required under Section 106 of Transfer Property Act, 1882 (hereinafter referred to as "Act, 1882"). He next submitted that said notice was returned back by the postman on the very next date i.e. 7.4.2015 with remark "nfj;kQr djus ij ?kj okyksa us crk;k fd izkIrdrkZ vius futh dk;Z ls ckgj x;s gSa vkus dk dksbZ fuf'pr le; ugha gSA " He next submitted that as per letter dated 8.6.2015, same has been returned to addressee i.e. Jai Prakash Yadav on 10.04.2015. Therefore, under such facts of the case, once the notice has not been served and on the very next date i.e. 7.4.2015, it was returned back with the endorsement of postman and further, notice has been sent back to addressee on 10.04.2015, it shall not be treated to be sufficient. It is settled position of law that without service of notice under Section 106 of Act, 1882, no SCC Suit can be maintained. In support of his contention, he has placed reliance upon the judgements of this Court in the matter of Shamim Ahmad Alvi Vs. Azizul Rahman Khan passed in Second Appeal No. 979 of 1972 decided on 11.3.1972, Shiv Narayan Goswami Vs. Jagdish Prasad Gupta; 2015(3) ARC 171, Satish Chandra @ Satish Pandit Vs. Manohar Lal Gera; 2017 (1) ARC 470 and Rama Devi Vs. Ram Prakash; 1984 LawSuit (All) 98. He also placed reliance upon the judgment of Apex Court in the matter of A. Rama Rao and others Vs. Raghunath Patnaik and others; 2007 (68) ALR 464.
Learned counsel for opposite party has not disputed the said fact, but submitted that sending notice dated 6.4.2015 shall be treated to be sufficient in light of Section 27 of General Clauses Act, 1897 (hereinafter referred to as "Act, 1897"). In support of his contention, he has placed reliance upon the judgements of Full Bench of this Court in the matter of Ganga Ram Vs. Phulwati; 1970 SCC Online All 42. He also placed reliance upon the judgments of Apex Court as well as different High Courts in the matters of Ms/. Madan and Co. Vs. Wazir Jaivir Chand; 1988 0 Supreme (SC) 715, Subhas Chandra Mitra Vs. Netai Chand Dey; 2004 (21) AIC 583, Sharda Prasad @ Chhulli Vs. A.D.J., Allahabad and others; 2005 (3) AWC 2417, C.C. Alavi Haji Vs. Palapetty Muhammed & another; 2007 (5) Supeme 277, Ghulam Waris Khan Vs. LT Col Ajeet Singh; 2008 ) Supreme (All) 134, Mohanlal Manna Vs. Lakshmi Prasad Shaw passed in Second Appeal No. 732 of 1999 decided on 30.11.2011, Smt. Vandana Gulati Vs. Gurmeet Singh @ Mangal Singh; 2013 (2) ADJ 281, Ajeet Seeds Limited Vs. K. Gopala Krishnaiah; (2014) 12 SCC 685, Alok Kumar Kaushik Vs. O.P. Shah and another; 2017 0 Supreme (All) 1170, Jain Developers and 3 others Vs. Raja R. Chhabria and 4 others passed in Commercial Appeal No. 168 of 2017 In Suit No. 2808 of 2008 with Chamber Summons No. 139 of 2017 with Notice of Motion No. 2513 of 2016 In Suit No. 2808 of 2008 decided on 29.01.2018 and P.T. Thomas Vs. Thomas Job; (2005) 6 SCC 478.
I have considered the rival submissions made by learned counsel for the parties, perused the relevant provisions of law as well as judgments relied upon.
The controversy before this Court is as to when service of notice shall be treated sufficient. To deal with present controversy, Section 114 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") as well as Section 27 of Act, 1897 is relevant provision of law, in light of which controversy has to be decided, therefore, the same is quoted below;
Section 114 of Act, 1872 "Section 114- Court may presume existence of certain facts.- 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 their relation to the facts of the particular case.
Illustrations The Court may presume-
(f) That the common course of business has been followed in particular cases;
Section 27 of Act, 1897 "27. Meaning of service by post. -
Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre- paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
Learned counsel for the revisionist placed reliance upon the judgment of this Court in the matter of Shamim Ahmad Alvi (Supra). Relevant paragraphs are quoted below;
"From his deposition, it is clear that on the first day the postman could not meet the appellant. The endorsement on the cover of the letter was, therefore, made "not met". Next day, he again went to the appellant's house but the postman was informed by the brother of the appellant that he was out of station and on the request of the postman, he refused to supply the address of the appellant. The endorsement of refusal made by the postal department was on the basis of the report given by the postman that the brother of the appellant refused to supply him the address of the appellant. On the evidence of the postman, it is not possible to hold that any offer was made by the postman to the appellant and in the absence of any offer, it is illegal to hold that the notice was refused by the appellant.
It is true that the lower appellate court has recorded a finding that the appellant was at Moradabad, as he must have come to meet the children during Id holidays and must have remained at Moradabad as Holi holidays followed the Id holidays. Sri Bashir Ahmad sought to challenge even that finding of the lower appellate court, but it is not necessary to enter into that question. I assume for the purposes of this case that the appellant was present at Moradabad on the relevant date, but unless the Court recorded a finding that he was present at home, the endorsement of refusal by the appellant would be wholly illegal. There is no finding by the lower appellate court that the appellant was present at home. The testimony of the postman, which is the only evidence on this material question, does not indicate that the appellant was present at home. He has not deposed that he offered the registered letter to the appellant and he refused to take the same. His evidence, on the other hand, clearly goes to show that he was not present at home and his brother refused to give the address. It is on this basis that the postal department has made the endorsement of refusal.
In Lakshmi Prasad Sharma v. Thakur Mahadeoji, (1971 All WR (HC) 622), it was held that unless there was an offer made, there could be no refusal. In this view of the matter, the finding that the appellant refused to receive the notice is wholly unwarranted on the evidence on the record. In my opinion, as there was no service of notice under Section 106 of the Transfer of Property Act on the appellant, there was no termination of his tenancy and the suit for ejectment could not possibly be decreed."
He further placed reliance upon the judgment of Shiv Narayan Goswami (supra) and submitted that after considering so many judgments of Apex Court, Court has taken same view. Relevant paragraphs are quoted below;
"The service of notice sent by registered post can be presumed to have been served upon the addressee when it is not returned undelivered or returned with postal endorsement of 'refusal' etc., but where the registered letter is received back with endorsement like "addressee is not available at the address" or "not met" or "out of station" etc., which shows that there was no occasion for postal authority to offer the letter to the addressee and there was no act on the part of addressee having the effect of denying receipt of such letter, such presumption of service in respect of registered letter cannot arise.
Section 27 of General Clauses Act, 1897 (hereinafter referred to as "Act, 1897") reads as under:
"27. Meaning of service by post.-Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
Here the presumption in respect of registered letter applies only if otherwise is not proved. In the present case letters have been received back with endorsement "not met" and that being so there cannot be a presumption that registered letter must be deemed to have been proved. Here is also not a case where letter has been received with endorsement of 'refusal'.
In Sukumar Guha Vs. Naresh Chandra Ghosh AIR 1968 Cal. 49, a Single Judge (Hon'ble Amresh Roj, J.) referring to Section 114, Illustration (f) of Act, 1872, Section 106 of Act, 1882 and Section 27 of Act, 1897 said that presumption under Section 27 of Act, 1897 can arise only when a notice is sent by registered post while there may arise a presumption under Section 114 of Act, 1872 when notice is sent by ordinary post or under certificate of posting. Both the presumptions are rebuttable. When the cover containing notice has been returned to the sender by postal authorities, then that fact is direct proof of the fact that the notice sent by post was not delivered to the party to whom it was addressed. Similarly, presumption under Section 114, illustration (f) of Evidence Act also, in my view, has no application in the case in hand.
The court below, therefore, in holding that since letters were sent by registered post, they will must be deemed to have been delivered to the addressee and the mere fact that letters have been received with endorsement that addressee did not meet would make no difference, in my view, is not correct. Since no valid notice was served upon revisionist, it cannot be said that tenancy was validly terminated entitling revisionist to have a decree of eviction against him."
He also placed reliance upon the judgment of this Court in the matter of Satish Chandra @ Satish Pandit (supra) and submitted that in that case too, Court has taken the similar view. Relevant paragraphs are quoted below;
"The basic question which arises for consideration is the validity of the notice determining tenancy and its services in the absence of which the suit could not have decreed.
The tenancy of the defendant revisionist is said to have been determined vide notice dated 02.01.2009 which was brought on record. The trial court while deciding the issues No. 3 and 4 regarding the validity of the notice and if the defendant revisionist is liable to be evicted on its basis has recorded a finding that since the notice dated 02.01.2009 (Paper No.7Ga) has been filed in evidence it clearly shows that the tenancy of the defendant revisionist has been determined.
In the later part of the finding, the court below poses a question as to whether the notice was served upon the defendant revisionist but solely on the reasoning that the copy of the notice is on record held that the tenancy has been determined without recording any specific finding with regard to the service of the notice.
In view of above, there is no finding by the court below regarding the service of notice dated 02.01.2009 upon the defendant revisionist.
Sri B.N. Rai, learned counsel appearing for the plaintiff respondent has pointed out that the notice dated 02.01.2009 was sent to the defendant revisionist by registered post and it was served upon him on 04.01.2009. The copy of the notice, its dispatched receipt dated 03.01.2009 and acknowledgement (Paper No. 9 Ga) were filed in evidence and therefore, it is clear that the notice determining tenancy was duly served upon the defendant revisionist.
It is true that the plaintiff respondent pleaded issuance of the aforesaid notice and its service but the service was denied by the defendant revisionist in the written statement. The mere filing of the copy of the notice, its receipt of dispatched and acknowledgement is not sufficient to prove that the notice was served upon the defendant revisionist.
The court below has not recorded any finding regarding the service of notice. The tenancy will not stand determined unless the notice determining tenancy is reported to be served upon the tenant.
In the absence of any finding in this regard the court below committed jurisdictional error in decreeing the suit by holding that the tenancy of the defendant revisionist stood determined by the said notice."
Further, he placed reliance upon the judgment of this Court in the matter of Rama Devi (supra). Relevant paragraph is being quoted below;
"When the first appellate Court has been confused on account of wrong reading of evidence and has referred to such wrong evidence naturally it will be now open to this Court to consider whether the evidence of Moti Lal, defendant No. 2, amounts to or serves as rebuttal of the initial presumption raised. Moti Lal has stated that the Moran of his son was to be performed at Vindhyachal and he has sent a postcard to his mother to reach Mirzapur by 6th evening so that she can accompany Moti Lal and others to Vindhyachal for such Mooran ceremony and his mother so accompanied and after performing the Mooran ceremony the party returned to Varanasi in the night of 8th Aug. 1970. True that if there is conduct or admission of the party belying such denial or rendering it improbable then their denial will not be proof but the conduct of the party denying the service does not appear to be such, rather circumstances are available to considerate be Moti Lal. (sic) A postcard was addressed to the mother much earlier and that evidence could not have been created later as an after-thought. This would mean that Mooran was planned as alleged and even defendant No. 1 the mother was summoned to accompany. There is another circumstance, namely, the leave taken by Moti Lal for 7-8-70, 8th being Saturday. I am really surprised how the lack of any permission to leave the station would be relevant. In fact he was out of station all right. The plaintiffs case is that he was in Varanasi proper. The defendant's case is that Moti Lal had gone to Mirzapur. I for one cannot apply two standards. If lack of permission is vague it is also vague against the case alleging that defendant No. 2 was at Varanasi so the question of permission has become irrelevant. The first appellate Court has fallen in error by misreading the evidence of the plaintiff and this Court can therefore well interfere with the findings of the first appellate Court. Moti Lal's evidence rebutted the presumption of service of notice by denial and in such situation it became incumbent upon the plaintiff to lead further evidence to prove otherwise. The first appellate Court has observed that there should have been some additional evidence including production of the mother. The mother's production as the other party would have simply meant multiplication of evidence in case of denial when it is a negative statement and the circumstances supporting or rebutting such statement are the only relevant facts of importance and this aspect has been overlooked by the first appellate Court. The presumption having stood rebutted the plaintiff should have given additional evidence as the burden again shifted upon the plaintiff to prove the service of notice which has not been done."
Lastly, he placed reliance upon the judgement of Apex Court in the matter of A. Rama Rao and others (supra). Relevant paragraphs are quoted below;
"It appears that stand was that when the defendant No. 1 on oath stated that he did not receive the notice allegedly sent by post, the same would prevail over the postal remarks that it was "refused" unless the postman was examined. Further, the plea that there was no specific averment regarding sending the notice by post or its refusal has not been considered. Learned Counsel for the respondents has submitted that suit was filed on 5.4.1984 i.e. the date of refusal overlooks the plea raised to the effect that the same could have been brought in by way of an amendment and/or that the alleged date of refusal was 8.4.1984.
Learned Counsel for the appellants has produced before us original paper books filed before the High Court which show the endorsement that their refusal was 8.4.1984.
In above view of the matter, we direct the High Court to record its findings on the question of service of notice and also the effect of the absence of any definite and specific plea regarding dispatch of notice by post and/or its refusal. Even if it is accepted that the refusal was on 5.4.1984 i.e. the date of filing of the suit nothing prevented the plaintiff to at least mention that the notice has been sent by post. The findings shall be recorded by the High Court after granting opportunity to the parties to place their respective stand. The High Court shall send its findings to this Court after recording the same within a period of three months. Call this matter after four months."
Learned counsel for opposite party submitted that judgments so relied by learned counsel for the revisionist have not considered the consistent pronouncements made by this Court as well as Apex Court where the Court has taken specific view that once notice has been sent on correct address in light of Section 114 of Act, 1872 as well as Section 27 of Act, 1897 shall be treated sufficient.
First, he placed reliance upon judgment of Full Bench of this Court in the matter of Ganga Ram (supra). Relevant paragraph of said judgment is quoted below;
"The fact that the notice was returned back to the sender with an endorsement "Refused" does not in our opinion, dislodge the presumption that the registered notice had reached the addressee. On the other hand, it strengthens the presumption that the notice had reached the addressee. It could not be delivered to him because he refused to accept it. In view of what we have stated above, we proceed to answer as follows the three questions referred to the Full Bench:--
Question Our Reply
1. Whether a notice under S. 3 of the U. P. (Temporary) Control of Rent and Eviction Act, even if combined with a notice under S.109 of the Transfer of Property Act, has to be served on the tenant personally?
Ans. The answer is in the negative. Even a notice of demand deemed or presumed to have been served on a tenant will be "service upon him of notice of demand".
2. Whether it is incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the defendant denies service on him ?
Ans. The answer is in the negative.
3. Whether in the circumstances of the present case the Courts below were right in raising the presumption under S.114 of the Evidence Act in favour of the landlord ?
Ans. The answer is in the affirmative. The presumption regarding service of such notice has also be made under S. 27, General Clauses Act."
He next relied upon the judgment of Apex Court in the matter of M/s. Madan and Co. (supra) in which the Apex Court has taken the very same view. Relevant paragraphs are quoted below;
"We are of opinion that the conclusion arrived at by the courts below is correct and should be upheld. It is true that the proviso to (i) of section 11(1) and the proviso to section 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through posts. All that a landlord can to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under s.27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under Order V of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal PG NO 990 course and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has B gone or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the words "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him I gets served on, or is received by, the tenant.
Much emphasis has been placed by the courts below and counsel for the landlord on the attempt made by the landlord to serve the notice on the premises in the presence of the witnesses. While the counsel for the landlord would have it that the steps show the landlord's bona fides counsel for the tenant submits that the haste with which the 'substituted service' was effected and the lack of any real attempt to find out the whereabouts of the tenant (who had, according to him, been compelled to be away at Amritsar for medical treatment) throw consideration doubts on the claim of bona fides. We do not think that any statutory significance can at all be attached to the service by affixture claimed to have been effected by the landlord. The statute prescribes only one method of service for the notice and none other. If, as we have held, the despatch of the notice by registered post was sufficient compliance with this requirement, the landlord has fulfilled it. But, if that is not so, it is no compliance with the statute for the landlord to say that he has served the notice by some other method. To require any such service to be effected over and above the postal service would be to travel outside the statute. Where the statute does not specify any such additional or alternative mode of service, there can be no warrant for importing into the statute a method of service on the lines of the provisions of the C.P.C. We would therefore not like to hold that a "substituted" service, such as the one effected by the landlord in the present case, is a necessary or permissible requirement of the statute. It may be even an impracticable, if not impossible, requirement to expect some such service to be effected in cases where the landlord lives outside the town, or the State in which the premises are situated. If, in the present case, the landlord attempted such service because he was in the same town, that can only show His bona fides and it is only in this view that we proceed to express our findings in this regard."
He further placed reliance upon the judgment of Calcutta High Court in the matter of Subhas Chandra Mitra (supra). Relevant paragraph is being quoted below;
"So far as the first limb of argument of Mr. Chatterjee is concerned, as rightly pointed out by Mr. Dutta, it appears from the Ext. 3 that the notice was tendered on several occasions. It is not mentioned that the tenant was absent or had the left the premises. No such endorsement is appearing from Ext. 3. This position could not be disputed by Mr. Chatterjee. Admittedly, the notice was issued in the suit premises. Mr. Dutta had pointed out and contended that it was the address recorded with the landlord. That this was also an address of the tenant is also not denied by the tenant. It is not a case made out by the tenant that he had left the premises altogether and was residing elsewhere and that he did not come to or visit the suit premises. He had neither established nor contended that during the period when the notice was tendered, he had never been to the suit premises nor he had proved that he was absent or had left the suit premises when the notice was tendered successively. The fact that the landlord had addressed the earlier notice at different place will not invalidate the second notice addressed to the suit premises when the notice addressed to some other place was not the address recorded with the landlord. The Tenant was connected with the tenancy and it could not be presumed that he had never visited the suit premises when admittedly he was running a Boarding house in the suit premises, as was pleaded in the written statement and in the reply to the first notice and as well as in the evidence of the DW-1, given by his son. Therefore, the action of the postal authority, which is done in the usual course of business, is to be accepted as correct unless it is otherwise proved by the tenant to show that he had no occasion to be in the premises during that period or that he had left the suit premises altogether. When it is not recorded on the postal endorsement by the postal authority that the tenant was absent or has left, we cannot presume that the tenant was absent from the suit premises during the period when the notice was tendered or had left the same. Therefore, we do not find any perversity in the concurrent finding of the Courts below that the service was good. Therefore, we are not inclined to interfere with the finding with regard to the validity of the service of notice on the basis of the endorsement "not claimed" by the postal authority."
He also placed reliance upon the judgment of this Court in the matter of Sharda Prasad @ Chhulli (supra) in which Court has considered the very same issue and taken same view about service of notice. Relevant paragraphs are quoted below;
"The postman initiated and put the date as 23.3.78.
In the instant case, both the Courts below after close scrutiny of the evidence on record found that there was presumption of service of notice on the tenant. Section 114 Clause (f) of the Evidence Act provides that the Court may presume that the common course of business has been followed. It was held by a Full Bench of this Court Ganga Ram's case (supra) that it is not incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the defendant denies service on him. The Bench further held that the Court below was right in raising the presumption under Section 114 of the Evidence Act in favour of the landlord where notice sent to the tenant was returned with an endorsement of refusal. The presumption regarding service has also to be made under Section 27 of General Clauses Act. This was held by the Supreme Court also in Puwada Venkateshwar Rao v. Chidamana Ventata Ramana,: AIR 1976 SC 869. The Apex Court of the country has also held in Gujarat Electricity Board (supra) that there is presumption of service of letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case, the petitioner failed to discharged this burden as he failed to produce material before the Court to show that the endorsement of the postman was wrong. Mere denial by the petitioner in the circumstances of the case was not sufficient to rebut the presumption. The petitioner deposed in the Courts below that no notice was served on him nor he refused to receive the notice. When he was confronted that he had refused to receive the letter in the presence of Ramesh Chandra, he denied the suggestion. He however admitted that Ramesh Chandra resided in front of his house. In this view of the matter I find that the presumption was not rebutted by the petitioner and he failed to show that letter was not sent on the correct address or there was no occasion for him to refuse. I therefore, find that the Courts below rightly found that notice was served on the tenant by refusal.
No other point was pressed in this petition."
He next placed reliance upon the judgment of Apex Court in the matter of C.C. Alavi Haji (supra) in which Apex Court has considered the matter in detail. Relevant paragraphs of the said judgment are quoted below;
"Therefore, the moot question requiring consideration is in regard to the implication of Section 114 of the Indian Evidence Act, 1872 insofar as the service of notice under the said proviso is concerned. Section 114 of the Indian Evidence Act, 1872 reads as follows:
Section 114 - Court may presume existence of certain facts - 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 their relation to the facts of the particular case.
Illustrations The Court may presume--------
(f) That the common course of business has been followed in particular cases.
...."
According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to 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 their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below:
27. Meaning of service by post-
Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh: AIR 1992 SC 1604; State of M.P. v. Hiralal and Ors. : (1996) 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu and Anr. : (2004) 8 SCC 774. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved."
He also placed reliance upon the judgment of this Court in the matter of Ghulam Waris Khan (supra). Relevant paragraphs are quoted below;
"Section 27 of the General Clauses Act also deals with the meaning of word 'service' by post and according to the same the service shall be deemed to be effected if the letter is properly addressed and the same is sent by registered post after the postal charges have already been paid unless contrary is proved to have been effected at the time if letter would have been delivered in ordinary course.
Hon'ble Supreme Court in M/s. Madan and Company v. Wazir Jaivir Chand : 1989 (2) ARC page 381, cited on behalf of revisionists has observed that if a registered letter addressed to a person at his residential address does not get served in normal course and is returned, it can only be attributed to the addressee's own conduct. It has been further observed that the dispatch of the notice by registered post is sufficient compliance, the landlord is required to fulfill.
The Hon'ble Supreme Court in K. Bhaskaran v. Sankaran Vaishyan Balan and another : (1999) 7 SCC 510, has held that there is no significant difference when the notice is returned as "unclaimed" and not as "refused" and has further held that under section 27 of the General Clauses Act, there would be presumption of service in such cases and that it is upto the other party to rebut this presumption of service by post Although the said case was under section 138 of the Negotiable Instruments Act but the principle in such matter regarding service of notice will be applicable in the instant case also. Therefore, in the instant case also, in view of the above endorsements it can safely be said that presumption would be that the notice was served on the defendant as he failed to rebut the said presumption by adducing any notice in rebuttal. It was open to the revisionist to produce either any of his employees to belie the endorsement of postman or postman himself."
Further, he placed reliance upon the judgment of Calcutta High Court in the matter of Mohanlal Manna (supra). Relevant paragraphs are quoted below;
"It is true that learned Lower Appellate Court in a cryptic manner accepted said postal endorsement 'not claimed' as a good service, but he relied on the findings of learned Trial Court on this score. Accordingly, it may be held that learned Lower Appellate Court did not make any elaborate discussion on the findings of learned Trial Court on this issue, as he concurred with learned Trial Court. Though a more detailed discussion on this point from the learned Lower Appellate Court was desirable but this cannot be a ground for not accepting the findings of learned Lower Appellate Court on this issue when he put reliance on the findings of the learned Trial Court who discussed this issue elaborately.
Accordingly, I am of opinion that the endorsements 'not claimed' on the notice sent under registered post amounted to good service in the facts and circumstances of this case and that findings of learned Courts on this score did not call for any interference by this Court."
He next placed reliance upon the judgment of this Court in the matter of Smt. Vandana Gulati (supra). Relevant paragraphs are quoted below;
"A Division Bench of this Court in Ram Nath and others v. Angan, 1984 (2) ARC 290, held that where a registered envelope with correct address of the tenant is posted and the tenant refuses to take notice or it is returned with the endorsement "not met" the notice shall be deemed to have been properly served upon him and the landlord is not required to examine the postman.
The above view is fulfilled by the observations of the Supreme Court in M/s. Madan and Co. v. Wazir Jaivir Chand, AIR 1989 SC 630, wherein it was remarked that when the postman is unable to deliver the letter/notice on repeated attempts either on account of the addressee 'not found' not in station, addressee is left or not met' the presumption of service arises as it is not possible for a landlord to ensure that the registered letter/notice sent by him is actually received by the tenant.
In the light of the above legal position, the argument that the endorsement "not claimed/not met" is not sufficient to prove deemed service of the notice cannot be accepted, particularly when there is no evidence to rebut the presumption of service which arises both on fact and law."
Again, Apex Court in the matter of Ajeet Seeds Limited (supra), reiterated the same view and relevant paragraph of the same is quoted hereinbelow;-
"This Court then explained the nature of presumptions under Section 114 of the Evidence Act and under Section 27 of the GC Act and pointed out how these two presumptions are to be employed while considering the question of service of notice under Section 138 of the NI Act. The relevant paragraphs read as under:
"13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to 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 their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below:
"27. Meaning of service by post.- Where any Central Act or regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression ''serve' or either of the expressions ''give' or ''send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post".
14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement ''refused' or ''not available in the house' or ''house locked' or ''shop closed' or ''addressee not in station', due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh (1992) 1 SCC 647; State of M.P. Vs. Hiralal & Ors. (1996) 7 SCC 523 and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. (2004) 8 SCC 74] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved."
It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business."
He next submitted that this Court again considered the very identical issue in the matter of Alok Kumar Kaushik (supra) where there is a postal remark that postman went at the addressee place, but either he had not met or door was locked. This Court has framed question no. 1 and finally replied that in such cases, notice shall be treated sufficient. Question No. 1 is quoted below;
"(i) Whether under the facts and circumstances of the case, there was a valid service of notice upon the defendant-revisionist terminating the tenancy and demanding arrears of rent ? "
The Court has replied the same, which is also quoted herein below;
"In the present set of facts, on account of default in payment of rent and also on account of expiry of the term of tenancy; the plaintiffs-respondents were seriously pursuing the matter terminating the tenancy of the defendant-revisionist and for recovery of arrears of rent amounting to Rs.54600/-. They sent repeated notices both at the residential address and Chamber address by registered post and also simultaneously under certificate of posting. The evidence being paper no.60-C and 61-C shows that they sent the notices at the residential address of the defendant-revisionist as well as at his Chamber address in Civil Court Compound, Ghaziabad. There is no dispute that the plaintiffs-respondents correctly mentioned the addresses of the defendant-revsionist on the envelops sent by registered post and under certificate of posting. The postman visited to deliver the registered envelops containing the notice, to the defendant-revisionist at his residential address and also Chamber address on several dates. Under the circumstances and also for the reasons recorded in preceding paragraphs no. 11,13 and 14 and the law laid down by Hon'ble Supreme Court as discussed in preceding paragraphs no. 12,14,15 and 16, I have no hesitation to hold that the facts of the present case fully justify a presumption to be drawn for valid service of notice upon the defendant-revisionist whereby the tenancy of the defendant-revisionist was terminated and arrears of rent were demanded."
He further placed reliance upon the judgment of Bombay High Court in the matter of Jain Developers and 3 others (supra). Relevant paragraph is being quoted below;
"Section 27 of the Code of Civil Procedure, 1908 deals with summons to be served to the defendants. It provides that where a suit has been duly instituted, a summons may be issued to the defendants to appear and answer the claim and may be served in the manner prescribed not beyond 30 days from the date of institution of the suit. Order V of the CPC deals with service of summons. Rule 2 mandates that every summons shall be accompanied by a copy of the plaint. As per Rule 5, the summons may be issued either for settlement of issues or final disposal of the suit and it is mandatory to mention the date of appearance of the defendants on receipt of service of summons. On receipt of the summons, the defendant may produce the documents which he intends to rely upon in his defence and if the summons is for final disposal, he may produce his witnesses on whom he intends to rely in support of his case. Rule 9 prescribes the manner in which the summons are to be delivered to the defendant and the summons can be delivered or sent either to the proper office to be served by him or it can be served through a courier service approved by the Court. Rule 10 provides mode of service of summons by delivery or tendering a copy thereof signed by the Judge or any officer authorized on its behalf and sealed with the seal of the Court. Rule 17 prescribes the procedure when the defendant refuses to accept the service or cannot be found and it requires the serving officer to affix the copy of the summons on the door or some conspicuous part of the house in which the defendants ordinarily reside or carries on business or personally works for gain and to return the original to the Court from which it was issued. Rule 18 mandates the serving officer to endorse or annex or caused to be served, annexed or caused to be served, annexed or to the original summons returned stating the time and the manner in which the summons were served. When the summons is returned unserved, the Court is duty bond to examine the serving officer on oath and may make further enquiry about service of such summons."
He further placed reliance upon the judgment of Apex Court in the matter of P.T. Thomas (supra) and submitted that once the endorsement has been made by the postman with regard to service of notice, there is no requirement to examine the postman. Relevant paragraph of the said judgment is quoted below;
"The High Court, in our view, has also misinterpreted Section 27 of the Post Office Act. The requirement of Section has been complied with in this case. The reasoning of the High Court on this issue is not correct and not in accordance with factual position. In the notice issued, the Postman has made the endorsement. This presumption is correct in law. He had given notice and intimation. Nevertheless, the respondent did not receive the notice and it was returned unserved. Therefore, in our view, there is no obligation cast on the appellant to examine the Postman as assumed by the High Court. The presumption under Section 114 of the Evidence Act operates apart from that under the Post Office Act, 1898. "
From the perusal of Section 27 of Act,1897, it clearly transpires that service shall be deemed to be affected by properly addressing, pre paying postal charges and posting by registered post, a letter containing the document shall be treated to be sufficient unless the contrary is proved. It shall also be seen in light of Section 114 (f) of of Act, 1872 which provides that in common course of business has to be followed and in present case, in light of Section 27 of Act,1897, common course of business is that letter has to be sent alongwith proper addressee, paying postal charges, having documents and further it will be presumed that address shall receive the same unless address is not correct.
Now coming to the judgment relied upon by learned counsel for the revisionist, there is no doubt that earlier judgments so relied upon by learned counsel for the revisionist has taken a different view and different interpretation of Section 27 of Act, 1897 read with Section 114 (f) of of Act, 1872, but later judgments, which relied by learned counsel for opposite party has taken entirely different view. The very same question was subject matter of Full Bench of this Court in the matter of Ganga Ram (supra) whereafter framing the very same question as to whether it is incumbent upon the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the defendant denies service on him and answer is in the negative. Not only this, Apex Court in the matter of M/s Madan and Co. (supra) has taken a very same view by detailed interpretation of Section 27 of Act, 1897, which is followed by Calcutta High Court in the matter of Subhas Chandra Mitra (supra) as well as by this Court in the matter of Sharda Prasad @ Chhulli (supra).
Again, Apex Court in the matter of C.C. Alavi Haji (supra) has considered the very same issue and after interpretation of Section 114 (f) of of Act, 1872 as well as Section 27 of Act, 1897, has taken a view that once notice has been sent with proper address and stamping to registered post, which was returned back with postal endorsement refused or not available in the house or house locked or shop closed or addressee not in the station, shall be treated sufficient. While coming to this conclusion, Apex Court has considered many other judgments earlier decided by Apex Court. The very same dictum of law has been followed by this Court as well as Calcutta High Court in the matters of Ghulam Waris Khan (supra), Mohanla Manna (supra) and Smt. Vandana Gulati (supra). Once again, in the year 2014, this matter went up to Apex Court in the matter of Ajeet Seeds Limited (supra) and Apex Court after interpretation of Section 114 (f) of of Act, 1872 as well as Section 27 of Act, 1897, has taken same view, which was earlier taken by this Court and held that once notice has been sent and came back with postal remark about refusal or any other remark with regard to non service of notice, shall be treated sufficient. This Court again in the matter of Alok Kumar Kaushik (supra) has considered this issue by framing question about service of notice after having discussion of Act, law laid down by Apex Court as well as this Court and has held that in such circumstances whether notice has been sent upon proper address in duly stamped envelop shall be treated sufficient after endorsement of postman with regard to non service of any reason except incorrect address.
This dictum of law has also been followed by Bombay High Court in the matter of Jain Developers and 3 others (supra). Not only this, in such cases where the examination of postman is required or not, Apex Court in the matter of P.T. Thomas (supra) has taken a specific view that no such examination of postman is required under such circumstances.
In the present case too, facts are undisputed. Letter was sent through registered post on correct address, which was returned back with endorsement of postman "nfj;kQr djus ij ?kj okyksa us crk;k fd izkIrdrkZ vius futh dk;Z ls ckgj x;s gSa vkus dk dksbZ fuf'pr le; ugha gSA''. Therefore, notice under Section 106 of Act, 1882 shall be treated to be sufficient for filing SCC Suit.
Accordingly, in light of provisions of Section 27 of Act, 1897 read with Section 114 (f) of Act, 1872 and law discussed hereinabove, this Court finds no good reason to hold that notice shall not be treated to be sufficient. I find no illegality in the impugned judgment and decree dated 03.10.2018 passed by Additional District and Sessions Judge/ F.T.C., Kanpur Nagar in SCC Suit No. 165 of 2015.
Accordingly, revision lacks merit and is dismissed.
No order as to costs.
Dt.06.08.2022 Arvind/-