Patna High Court
Dineshwar Prasad Singh vs Srimati Manorama Devi on 17 February, 1978
Equivalent citations: AIR1978PAT256, 1978(26)BLJR666, AIR 1978 PATNA 256
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT
1. This appeal by the tenant-defendant is directed against the decree passed by the lower appellate court in a suit for eviction filed by the respondent. The appellant has been a tenant of certain premises described in the schedule to the plaint in the town of Monghyr and the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as the 'Act') apply to the case. The ground for eviction made out in the plaint and accepted by both the courts below is non-payment of rent for a period of more than two months. The finding of the trial Court that the defendant was a defaulter in the matter of payment of the rent was not challenged by him before the lower appellate court nor before us. The only question which has been argued in support of the second appeal, is that the suit should be dismissed for non-compliance of the service of notice terminating the tenancy as envisaged by Section 106 of the T.P. Act. The trial Court decided the issue in favour of the appellant and dismissed the suit, but on appeal the lower appellate Court reversed the finding and decreed the suit.
2. The plaintiff produced a certificate of posting showing that a notice as required by law had been sent to the defendant by post. The husband of the plaintiff, P.W. 2, gave oral evidence also. The court below has accepted the evidence.
3. Mr. Birendra Mohan Singh, learned Counsel for the appellant, has contended that no presumption arises in favour of the plaintiff in the present case inasmuch as she did not send the notice by registered post. Referring to the provisions of Section 27 of the Bihar and Orissa General Clauses Act, the Counsel argued that such a presumption could arise only in regard to registered letters. Reliance has been placed on the decision in B.L. Shrivastava v. M.M.L. Shridhar (AIR 1975 Madh Pra 21). Mr. Singh further urged that the presumption under Section 114 of the Evidence Act, even assuming to be applicable to the case, is very weak in nature and in the facts and circumstances of the case, the lower appellate court committed an error of law in securing service of notice.
4. On behalf of the plaintiff, Mr. Harendra Prasad has relied upon the decision in Harihar Banerji v. Ramshashi Roy (AIR 1918 PC 102) wherein it was stated that "if a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed." It is true that in that case the letter in question had been sent by registered post but it is not possible to distinguish the case on that ground as the presumption referred to above was stated in relation to letters sent by ordinary post. Proceeding further the Privy Council said that the presumption would apply with still greater force to letters which the sender has taken the precaution to register.
5. The provisions of Section 114 of the Evidence Act lay down that 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 facts of the particular case. One of the illustrations given in the Act permits the court to presume that an official act has been regularly performed. The post office department is a wing of the Government and a presumption may, therefore, be raised in favour of the plaintiff. The certificate of posting, Ext. 3, has, therefore, been correctly taken into account by the Court below for holding in favour of service of notice. So far as the question as to whether the letter was actually posted or not is concerned, it has been proved by the evidence of P.W. 2 which has been accepted by the court below. Besides, the certificate of posting itself furnishes evidence of such posting. The further presumption that the letter was duly handed over to the addressee is permissible and we do not find any error in the judgment of the court below on this account. Merely for the reasons that the presumption mentioned in Section 27 of the Bihar and Orissa General Clauses Act is not available in the case as being confined to registered letters only does not lead to the inference that the presumption under Section 114 of the Evidence Act cannot be raised. Mr. Prasad states that the Calcutta High Court has also taken a similar view in the case of Batokristo Nandy v. Ranadeb Chowdhuri (ILR (1972) 2 Cal 480). The first point urged on behalf of the appellant is, therefore, rejected.
6. Mr. Singh next argued that the finding of fact recorded by the court on the question of posting of the letter should be set aside and it should further be held that the court below erred in law in rejecting the defence evidence denying the delivery of the notice. The finding which is challenged is one of pure fact and it is not permissible in the second appeal to examine its correctness. This argument also, therefore, fails.
7. In the result, the appeal fails and is dismissed with costs.