Allahabad High Court
Prem Bahadur Dalela vs Umeshraj Bali on 6 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1966, (2019) 11 ADJ 697 (ALL) (2019) 3 ALL RENTCAS 941, (2019) 3 ALL RENTCAS 941
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR RESERVED Case :- S.C.C. REVISION No. - 157 of 2015 Revisionist :- Prem Bahadur Dalela Opposite Party :- Umeshraj Bali Counsel for Revisionist :- Amrendra Nath Tripathi Counsel for Opposite Party :- Hari Mohan Mathur,Adnan Ahmad,Punita Pandey Hon'ble Jaspreet Singh,J.
1. Heard Sri Amrendra Nath Tripathi, learned counsel for the revisionist and Sri Adnan Ahmad, learned counsel for the opposite parties.
2. The instant SCC Revision has been preferred under Section 25 of the Provincial Small Cause Courts' Act, being aggrieved against the judgment dated 07.05.2015 passed by the Additional District Judge, Court No. 9, Lucknow (acting as SCC Court) in SCC Suit No. 18 of 1999 by means of which the suit of the opposite parties has been decreed.
3. Sri Amrendra Nath Tripathi has challenged the impugned judgment dated 07.11.2015 primarliy on the ground that the notice for termination of tenancy dated 16.03.1999 which is alleged to have been served on the revisionist by refusal, has wrongly been held to be served , inasmuch, as there was clear evidence to the effect that on the alleged date when the said notice is said to have been refused by the revisionist and was addressed at Lucknow but at the given time he was on his posting at Hardoi and accordingly the presumption which has been drawn is incorrect which has resulted in miscarriage of justice. The second ground raised by Sri Tripathi is that the rate of rent was Rs. 100/- per month which has erroneously been held by the Trial Court to be Rs. 600/-, whereas there was enough material on record including the statement of the opposite party no. 1 which indicated that he had no material to prove that the rate of rent was Rs. 600/- per month and despite the said statement, the Court below has ignored the same and has upheld the rate of rent to be Rs. 600/- which is erroneous. Another ground has been raised though feebly argued that the opposite party no. 1 is not the owner-landlord rather the original landlord was one Sri K.N. Mathur and upon his death one Smt. Veena Srivastava had claimed title over the property in question.
4. It has also been submitted that in the SCC proceedings Order 14 of the C.P.C. is not applicable, however, in the present case, the Trial Court by means of its order dated 19.03.2005 had framed 7 issues. It has been submitted that though the framing of issues is not necessary but at the same time once the Court has proceeded to frame the issue then it was incumbent on the Court to have decided all the issues. It has been submitted that from the perusal of the impugned judgment it would indicate that the Court has not decided all the issues and rather has encapsulated the controversy in four issues whereas issue no. 6 and 7 which were framed on 13.09.2005 have not been decided at all. On the strength of the aforesaid submissions it has been submitted that the judgment passed by the Court dated 07.11.2015 is bad in the eyes of law and cannot sustain the judicial scrutiny.
5. Per contra, Sri Adnan Ahmad, learned counsel appearing for the opposite parties has submitted that the finding regarding the service of notice is purely, a finding of fact and in view of the limited jurisdiction exercised by the Court in terms of Section 25 of the Provincial Small Cause Courts Act, such finding cannot be disturbed unless they are perverse. It has further been submitted that the original notice was returned unserved with the endorsement of refusal, was placed on the record. It has been submitted that it is not the argument of the learned counsel for the revisionist that the notice was incorrectly addressed. It has also not been indicated by the revisionist that if he alone was not present at Lucknow then whether his entire family had also moved out of Lucknow. It has also been argued that on the given date when the notice was refused, the revisionist was in Lucknow as he was placed under Suspension and was present at Lucknow at the relevant time. It has further been submitted that even otherwise once the notice was returned unserved with the endorsement of refusal then it was the duty of the revisionist to have rebutted the aforesaid presumption of service by examining the postman, however, by merely making a bald denial the presumption cannot stand rebutted and in the present case the revisionist has not undertaken any exercise to rebut the presumption nor attempted to produce the postman as a witness. In the aforesaid circumstances, the presumption of service by refusal has rightly been recorded by the Trial court which requires no interference.
6. It has also been argued by Sri Ahmad that as far as the rate of rent is concerned, the court below has relied upon a document bearing Paper No. C-48 dated 24.07.1990 which contained the handwriting and signatures of the revisionist himself. The aforesaid document was a rent note which was admitted by the revisionist. The rate of rent was clearly mentioned in the said rent note, accordingly, the Court below has rightly held the rate of rent to be Rs. 600/- per month and this again being finding of fact cannot be upset in revisional jurisdiction under Section 25 of the Provincial Small Cause Courts' Act.
7. Sri Ahmad has also submitted that the reference to Smt. Veena Srivatastava who was claiming title is also misconceived, inasmuch as, she had attempted to seek her impleadment in the present SCC suit which was rejected. Moreover, her title suit seeking declaration and injunction against the opposite party no. 1 was also contested wherein the opposite party no. 1 had also led his counter claim and the same was finally decided in favour of the opposite party no. 1 by means of judgment and decree passed by the Civil Judge (Senior Division) Mohanlal Ganj, Lucknow in R.S. No. 149 of 2007 wherein the counter claim of the opposite party no. 1 was decreed on 01.09.2015. It has also been urged that this issue is not open for the revisionist, inasmuch as, he being a tenant has no right to challenge the title of his landlord.
8. Sri Adnan Ahmad Ahmad lastly submitted that though in the proceedings governed by the Provincial Small Cause Court's Act , Order 40 C.P.C. prescribes that the provisions of Order 14 C.P.C. are not applicable in proceedings governed by the Provincial Small Cause Court's Act. In view thereof, even if the issues were framed by the Trial Court on 19.03.2005 the same do not give any leverage to the revisionist. From the impugned judgment, it was pointed out that after noticing the various contentions of the parties, the Judge, Small Causes had framed the points for determination which have been decided. The points for determination is different to the issues as framed. Moreover, as per Order 20 Rule 4 C.P.C., the judgment of the Small Cause Court need not contain more than the points of determination and the decision thereon. Once the legislative mandate has been complied with as shall be evident from the impugned judgment merely because at some earlier point of time, the issues were framed and not all issues decided thereafter it will not vitiate the judgment more so when the revisionist has failed to point out what prejudice has been caused to him. In view of the above, the opposite party has prayed that the revision lacks merit and deserves to be dismissed.
9. The Court has heard the learned counsel for the parties and also perused the record.
10. Briefly the facts giving rise to the above revision are being noticed hereinafter first:-
11. One Sri Kameshwar Nath Mathur, the original plaintiff had instituted a suit for arrears of rent and ejectment against the revisionist Prem Bahadur Dalela which was registered as SCC Suit No. 18 of 1999. It was pleaded that the property in question i.e. House No. 295/309, Asharfabad, Deen Dayal Road, P.S. Chowk, Lucknow of which Sri K.N. Mathur was its owner and landlord, a part of the said house was let out to the revisionist on a monthly rent of Rs. 600/- per month. The tenanted portion comprised of two rooms, a kitchen, a latrine and a bathroom. It was further pleaded that the revisionist paid rent at the rate of Rs. 600/- per month, apart from the aforesaid, the electricity charges were paid separately. The revisionist committed default in payment of rent from March, 1993 and despite having made several requests to vacate the premises, the revisionist failed. Ultimately, Sri K.N. Mathur through his Advocate sent a composite notice for demand and ejectment dated 16.03.1999 which was sent to the revisionist at his correct address through registered post. The said notice was served on the revisionist on 23.03.1999 by refusal. Since at the time of filing of the Suit in the year 1999 the rent had accumulated for 72 months, however, on account of the law of limitation Sri K.N. Mathur claimed rent only for the last 36 months i.e. from May 1996 till April 1999 at the rate of Rs. 600 per month amounting to Rs. 21,460/-as well as the damages for wrongful use and occupation at the rate of Rs. 20/- per day with the effect from 24.04.1999 till 05.05.1999.
12. The revisionist/defendant contested the proceedings by filing his written statement which was later on amended. The main defence of the revisionist was the rate of rent of the premises in question was Rs. 100/- per month and not 600/- as alleged by the plaintiff. Even the extent of tenanted accommodation was disputed and it was pleaded that the revisionist had only one room, one store room a latrine and a bathroom apart from a kitchen as part of his tenancy. The revisionist disputed the service of notice and specifically pleaded that at the time when the alleged notice is said to have been served on the revisionist, he was posted at Hardoi and was on his official duty. The demand for arrear of rent was also disputed coupled with the fact that since the landlord had failed to accept the rent, hence, the revisionist started depositing the rent before the Court of Civil Judge (Junior Division), North, Lucknow in terms of Section 30 (1) of the U.P. Act 13 of 1972 Act which was registered as Misc. Case No. 199 of 1998 and later the said suit was dismissed for default for which the tenant had moved an application for restoration, however, the same also came to be dismissed. It was also pleaded that the plaintiff had instituted the suit to trouble and harass the tenant and as such neither there were arrears of rent nor the alleged notice for demand and ejectment was served on the tenant, accordingly, the suit was liable to be dismissed.
13. It will be relevant to mention that during the pendency of the proceedings before the Trial Court, Sri K.N. Mathur expired and in his place Sri Umesh Raj Bali was substituted. The parties filed their documentary evidence. The plaintiff examined himself as P.W. 1 whereas the revisionist appeared as the sole defendant-witness.
14. The Trial Court after considering the respective pleadings as well as evidence, both oral as well as documentary, alongwith the case laws cited by the parties decreed the suit of the plaintiff-opposite party by means of judgment dated 07.11.2015. The Trial Court framed had four points for determination, which encompassed the controversy emerging from the pleadings of the parties. The Trial Court recorded a finding that the notice for demand of rent and ejectment was duly served on the defendant-revisionist. It also held that the rate of rent was Rs. 600/-per month and the defendant-revisionist was a defaulter in arrears and consequently decreed the suit.
15. It is this judgment dated 07.11.2015 which has been assailed before this Court by means of the instant revision on the ground as already noticed hereinabove first.
16. Before proceeding further, it will be apposite to notice the scope of Section 25 of the Small Cause Courts Act, the decision of the Apex Court in the case of Ram Murti Devi Vs. Pushpa Devi and Others reported in 2017 (15) SCC 230 while considering the scope of revision under Section 25 of the Provincial Small Cause Courts' Act has stated in following words whcih reads as under:-
"29. The High Court was hearing a revision under Section 25 of the 1887 Act. What is the scope of Section 25 of the 1887 Act came for consideration before this Court in Hari Shankar v. Rao Girdhari Lal Chowdhury [Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698] , where this Court laid down the following in para 9: (Hari Shankar case [Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698] , AIR p. 701) "9. The section we are dealing with, is almost the same as Section 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better, than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell & Co. Ltd. v. Waman Hemraj [Bell & Co. Ltd. v. Waman Hemraj, 1937 SCC OnLine Bom 99 : AIR 1938 Bom 223] where the learned Chief Justice, dealing with Section 25 of the Provincial Small Cause Courts Act, observed: (SCC OnLine Bom paras 3-4) ''3. The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law.
4. The section does not enumerate the cases in which the Court may interfere in revision, as does, Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.' This observation has our full concurrence."
30. Further, in Mundri Lal v. Sushila Rani [Mundri Lal v. Sushila Rani, (2007) 8 SCC 609] which was a case arising from Act 13 of 1972 and a revisional jurisdiction under Section 25 of the 1887 Act, in paras 22 and 23, this Court held that the jurisdiction under Section 25 of the Provincial Small Cause Courts Act, is wider than Section 115 CPC. It is further held that pure finding of the fact based on appreciation of evidence although may not be interfered but there are several circumstances in which the Revisional Court can interfere with the finding of fact. In paras 22 and 23 following was stated: (SCC pp. 617-18) "22. There cannot be any doubt whatsoever that the revisional jurisdiction of the High Court under Section 25 of the Provincial Small Cause Courts Act is wider than Section 115 of the Code of Civil Procedure. But the fact that a revision is provided for by the statute, and not an appeal, itself is suggestive of the fact that ordinarily revisional jurisdiction can be exercised only when a question of law arises.
23. We, however, do not mean to say that under no circumstances finding of fact cannot be interfered therewith. A pure finding of fact based on appreciation of evidence although may not be interfered with but if such finding has been arrived at upon taking into consideration irrelevant factors or therefor relevant fact has been ignored, the Revisional Court will have the requisite jurisdiction to interfere with a finding of fact. Applicability of the provisions of Section 2(2) of the Act may in that sense involve determination of mixed question of law and fact."
17. Similarly in the case of Trilok Singh Chauhan Vs. Ram Lal, reported in 2018 (2) SCC 566, once again while considering the scope of Revision under Section 25 of the Provincial Small Cause Courts Act the Apex Court has stated and the relevant portion reads as under:-
"14. The High Court was exercising the jurisdiction under Section 25 of the 1887 Act, which provision is as follows:
"25. Revision of decrees and orders of Courts of Small Causes.--The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit."
15. The scope of Section 25 of the 1887 Act, came for consideration before this Court on several occasions. In Hari Shankar v. Rao Girdhari Lal Chowdhury [Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698] , in paras 9 and 10, this Court laid down the following: (AIR p. 701) "9. The section we are dealing with, is almost the same as Section 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell & Co. Ltd. v. Waman Hemraj [Bell & Co. Ltd. v. Waman Hemraj, 1937 SCC OnLine Bom 99 : (1938) 40 Bom LR 125 : AIR 1938 Bom 223] , where the learned Chief Justice, dealing with Section 25 of the Provincial Small Cause Courts Act, observed: (SCC OnLine Bom paras 3-4).
''3. ... The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law.
4. The section does not enumerate the cases in which the Court may interfere in revision, as does, Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.' This observation has our full concurrence.
10. What the learned Chief Justice has said applies to Section 35 of the Act, with which we are concerned. Judged from this point of view, the learned Single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption."
16. Another judgment which needs to be noted is judgment of this Court in Mundri Lal v. Sushila Rani [Mundri Lal v. Sushila Rani, (2007) 8 SCC 609] . This Court held that jurisdiction under Section 25 of the 1887 Act, is wider than the revisional jurisdiction under Section 115 CPC. But pure finding of fact based on appreciation of evidence may not be interfered with, in exercise of jurisdiction under Section 25 of the 1887 Act. The Court also explained the circumstances under which, findings can be interfered with in exercise of jurisdiction under Section 25. There are very limited grounds on which there can be interference in exercise of jurisdiction under Section 25; they are, when (i) findings are perverse or (ii) based on no material or (iii) findings have been arrived at upon taking into consideration the inadmissible evidence or (iv) findings have been arrived at without consideration of relevant evidence."
18. It is in light of the aforesaid that the decision and judgment passed by the Trial Court is to be examined. Considering the first submission of the learned counsel for the revisionist regarding the presumption of notice of demand and ejectment. The plaintiff in para 4 had specifically pleaded that the notice dated 16.03.1999 was sent to the defendant by registered post and it was refused by him on 23.03.1999 and thus the notice is deemed to be served by refusal. The original notice was brought on record filed by the plaintiff bearing Paper No. C-6. From the perusal of the record which is available before this Court, it indicates that the aforesaid notice was addressed to the revisionist at the correct address 295/3059 near City Montessory School, Asharfabad, Lucknow. The original postal receipt has also been brought on record. It is not the case of the defendant-revisionist that the said notice has been incorrectly addressed or insufficiently stamped. The ground raised by the defendant is that on the date when the alleged notice is said to have been served, the revisionist was at Hardoi.
19. This Court upon considering the entire evidence lead by the revisionist finds that nowhere the revisionist ever stated that on the given day he was residing at Hardoi or he was at Hardoi along with his entire family.
20. Merely making a bald denial to indicate that the revisionist was at Hardoi is not sufficient to rebut the presumption of service of notice by refusal. The revisionist has filed certain documents along with the document list bearing Paper No. C-79 which all relate to his service and salary certificates. All the aforesaid documents indicate that the revisionist was working and posted at Hardoi, however, these documents do not indicate that at the relevant time and date, the revisionist with his entire family was actually residing at Hardoi or at some other address than the one mentioned in the notice. The revisionist has also not given any positive evidence to indicate that he was residing at Hardoi. Moreover, he has filed his identity card wherein his permanent address has been shown as 295/309, Asharfabad, Lucknow which is bearing No. C-79/80 which is the address at which the notice was sent.
21. The learned counsel for the revisionist has relied upon the decision of the Apex Court in the case of Parimal Vs. Veena @ Bharti, reported in 2011 3 SCC 545 and also in the case of Gangaram Vs. Smt. Foolwati, reported in 1970 SCC Online All 42 (Full Bench) and in the case of Shiv Murat and Another Vs. State of U.P 2014 reported in 2014 SCC Online All 6135. In all the aforesaid cases, the Court has considered the aspect of presumption. The proposition as laid in the aforesaid decisions is not in dispute to the extent that the presumption of service of a letter sent under registered cover, if the same is returned back with the postal endorsement that the addressee refused to accept, is a legal presumption. The aforesaid presumption can be rebutted and it is open for a party concerned to place the 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 primarily lies upon the party who challenges the factum of service.
22. As far as the aforesaid proposition is concerned, there is no quarrel. However, the law in so far as the presumption of notice is concerned has also been considered by a co-ordinate Bench of this Court in the case of Ugrasen Vs. Parmeshwari Devi reported in 2014 (9) ADJ 356. The question before the Court was who has to prove the endorsement of refusal was wrong. In other words, the question to be decided was that whose responsibility was to seek the production of the postman to prove the endorsement of refusal.
23. The aforesaid aspect was considered in light of the statutory provisions as well as various authorities on the subject. The relevant portion of the aforesaid report is reproduced hereinafter:-
7. Another relevant provision is section 114, Illustrations (e) and (f), Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1972") which reads as under:
"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--
...
(e) The judicial and official acts have been regularly performed;
(f) That the common course of business has been followed in particular cases;"
8. The third is Indian Post Office Act, 1898 (hereinafter referred to as "Act, 1898"). Sections 3 and 14 thereof, relevant for the purpose of present case, are reproduced as under:
"3. Meanings of "in course of transmission by post" and "delivery".--For the purposes of this Act,--
(a) a postal article shall be deemed to be in course of transmission by the post from the time of its being delivered to a post office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chapter VII;
(b) the delivery of a postal article of any description to a postman or other person authorized to receive postal articles of that description for the post shall be deemed to be a delivery to a post office; and
(c) the delivery of a postal article at the house or office of the addressee, or to the addressee or his servant or agent or other person considered to be authorized to receive the article according to the usual manner of delivering postal articles to the addressee, shall be deemed to be delivery to the addressee."
"14. Post Office marks prima facie evidence of certain facts denoted.-- In every proceeding for the recovery of any postage or other sum alleged to be due under this Act in respect of a postal article,--
(a) the production of the postal article, having thereon the official mark of the Post Office denoting that the article has been refused, or that the addressee is dead or cannot be found, shall be prima facie evidence of the fact so denoted, and
(b) the person from whom the postal article purports to have come, shall, until the contrary is proved, be deemed to be the sender thereof."
10. Though in the three statutes referred to above, the oldest one is Act, 1872 but in fact the provisions relating to Post Office Act are older, going to 1866 when the first Post Office Act was enacted. In the then British Indian Territory governed by the British Government, postal services were established by ap pointing a Director, Post Office by the Governor General in Council in order to regulate this branch of public service and revenue, in the light of experiences gained by English postal legislation and development of Post Offices. Commenting upon the Post Office service in England, in Whitfield v. Lord he Despencer, [(1778) 2 Cowp. 754.] Lord Mansfield had said:
"The Post Master has no hire, enters into no contract, carries on no merchandise or commerce. But the post office is a branch of revenue, and a branch of police, created by Act of Parliament. As a branch of revenue, there are great receipts; but there is likewise a great surplus of benefit and advantage to the public, arising from the fund. As a branch of police it puts the whole correspondence of the kingdom (for the exceptions are very trifling) under Government, and entrusts the management and direction of it to the crown, and officers appointed by the crown. There is no analogy therefore between the case of the Post Master and a common carrier."
11. Following the above decision, in a recent case, in Triefus and Co. Ltd. v. Post Office, [(1957) 2 Q.B. 352.] it was held that Post Office is a branch of revenue and Post Master General does not enter into any contract with a person who entrusted, to the Post Office, a postal packet for transmission overseas.
12. Presently also, the Post Office service in India, with which this Court is concerned, is not in the hands of any private individual or corporate body but a Department of Government of India and on certain matters, it is regulated by various Statutes including the Act, 1898.
13. I have referred to the above two decisions in Whitfield (supra) and Triefus and Co. Ltd. (supra) for the reason that the system of Post Office in India has been observed to be similar as it was in England. The Apex Court referring to certain provisions of Act, 1898, in Union of India v. Mohd. Niazim, [(1980) 1 SCC 284 : AIR 1980 SC 431 : 1979 (5) ALR 230 (SC) (Sum.).] said:
"These are only some of the provisions of the Act which seem to indicate that the post office is not a common carrier, it is not an agent of the sender of the postal article for reaching it to the addressee. It is really a branch of the public service providing postal services subject to the provisions of the Indian Post Office Act and the rules made thereunder. The law relating to the post office in England is not very much different from that in this country."
14. The aforesaid decision was rendered considering the provisions in Act, 1898 which was enacted by repealing previous Act of 1866, so as to consolidate and amend the law relating to Post Office in India.
15. The post office in India, thus, is an institution established by a statute. "Postage" required to avail of the postal services has been defined in section 2(f) of Act, 1898 as "the duty chargeable for the transmission by post of postal articles". Under section 4 the exclusive privilege of conveying letters is reserved to the Central Government with certain exceptions which are not significant. Section 17 of the Act says that "postage stamps" shall be deemed to be issued by Government for the purpose of revenue. The provisions of the Act indicate that the post office is not a common carrier. It is not an agent of sender of the postal article for reaching it to the addressee. It is really a branch of the public service providing postal services subject to the provisions of Act, 1898 and the Rules made thereunder. It is in this context, section 14 of Act, 1898 would also be a matter of relevance which says that the production of the postal article, having thereon the official mark of Post Office denoting that the article has been refused, or that the addressee is dead or cannot be found, shall be prima facie evidence of the fact so denoted. The Statute provides a prima facie evidence of the mark given by Postal Department on the postal article sent by post regarding its correctness, though the word "prima facie" shows that it is liable to be disproved by adducing evidence otherwise. Meaning thereby, mere denial by the party in respect to whom endorsement has been made by postal agent otherwise, would not be sufficient unless he adduces evidence to discredit prima facie evidence in the shape of endorsement made by postal department on the article concerned. This provision read with section 114 of Act, 1872 and section 27 of Act, 1897, makes the situation quite clear.
16. It appears that in various decisions, while considering the question of service of notice, most of the times, provisions of Act, 1898 and its implication have been omitted even when the service was sought to be effected by registered post.
17. Initially the issue of service of notice under section 106 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") was considered by Privy Council in Harihar Banerji v. Ramshashi Roy. [AIR 1918 PC 102] The Court said, if a letter, properly directed, containing a notice to quit, is proved to have been put into post office, it is presumed that letter reached its destination at the proper time according to the regular course of business of post office and was received by the person to whom it was addressed. The presumption would apply with still greater force to such letters, which the sender has taken precaution, to register, and is not rebutted, but strengthened by the fact that a receipt for the letter is produced, signed on behalf of the addressee by some person other than the addressee himself. Here was a case where service of notice was not denied by all and one of the person has admitted its service, therefore, a presumption was drawn. So the facts of this case makes it clear that the presumption was rightly drawn.
18. In Sukumar Guha v. 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. Whether it was tendered and, if so, to whom tendered, remains a matter to be ascertained on evidence. If acceptable evidence is available that it was tendered to the party personally, then such facts may bring the service of notice within the second mode, namely, tendered or delivered personally to such party. If however, tender or delivery is not to the party personally but to a member of his family or a servant, then it may be effective tender or delivery only when the notice was addressed to the residence of the party. Such personal tender or vicarious tender may be effective even if it was through the agency of post office, and proof of that tender comes from testimony of any person present at the event, and not only by examining the postman. Here what I finds that when Court talks of evidence, we read it in the context of section 114 of Act, 1872. A registered envelop received back from postal authority with the endorsement of postman of "refusal" will constitute a valid evidence to show that it was served upon the addressee but he refused to accept unless proved otherwise and for that purpose examination of postman for constituting a prima facie evidence, further, would not be required, in view of section 14 of Act, 1898. This section 14 of Act, 1898 has been omitted from consideration by the Court.
19. This Court in Wasu Ram v. R.L. Sethi, [1963 AWR 472.] said:
"The question whether a communication sent through the post was received by the address is one of fact, but in many cases it may be difficult and inconvenient if not impossible, to produce the postal official who delivered the letter or the money order. To obviate this difficulty the Evidence Act permits certain presumptions to be made under certain circumstances, section 16 provides that "when there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact". The illustration (a) to this section explains that in a question "whether a particular letter was despaired, the facts that it was the ordinary course of business for all letter put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant". Section 114 provides 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 proper business, in their relation to the facts of the particular case. Illustration (e) to this section says that "the Court may presume that judicial and official acts have been regularly performed"; and Illustration (f) says that the Court may presume that "the common course of business has been followed in particular cases". The combined effect of these two sections is to raise a presumption that a communication sent by post was received in the ordinary course by the addressee, and if it was returned to the sender with the endorsement "refused", the postman must have tendered it but delivery could not be made because of the refusal of the addressee. These presumptions are based on human experience and common sense. Our experience tells us that millions of letters which are posted are delivered in due course to the address, though in exceptional cases letters do get lost. The onus of proof is on the person who asserts that the abnormal happened in his case and the communication sent by post did not follow its normal course to destination."
20. It further held:
"Whenever a communication is sent by post there is a presumption that it was duly delivered or tendered. If the communication is returned by the post office with the endorsement "refused" the presumption will be that it was tendered by the postal authorities in their ordinary course of business to the addressee who refused. The strength of the presumption will vary according to the fact of each case, being strong in the case of registered letters, and strongest in the case of money orders and insured articles the delivery of which cannot be made without observing certain precautions which are prescribed. Rules Under/Chap. VII of the Post and Telegraph Guide provide that in case of refusal the money order shall be returned to the remitter with the endorsement "refused". If the addressee states on oath that he never received the communication, the Court must decide after considering all the surrounding circumstances, whether he should be believed. The question is always one of fact, though I would add as a matter of plain common sense that a denial which is not only bare but barefaced and made by a person who stood to profit by his denial and, therefore, had all the motive in the word to deny, will not ordinarily weaken the presumption."
21. The above view was followed in Asa Ram v. Ravi Prakash, [AIR 1966 All. 519] and the relevant observation in para 3 thereof reads as under:
"3. Mr. Sinha then argued that a presumption of refusal could arise only if the endorsement ''refused' was proved by evidence, and this could only be done by producing the postman who made the endorsement. I do not agree. If the landlord deposes that he sent an envelop containing the notice and that the same envelop was received by him with the endorsement ''refused' which was not there before and he produces the envelop with the endorsement, this is a sufficient evidence to prove the endorsement. In this case the respondent appeared as a witness and proved the sending and the return of the envelope. On this evidence the Court could rely on the presumption authorized under section 114 of the Evidence Act."
22. Thereafter, the issue came to be considered by a Full Bench in Ganga Ram v. Phulivati. [AIR 1970 All. 446.] One of the three questions referred for consideration before Full Bench was "whether it is incumbent on the plaintiff to prove endorsement of ''refusal' on the notice sent by registered post by producing postman or other evidence in case the defendant denies service on him?" Full Bench considered this question referring to provisions of all three Statutes, namely, Act, 1872; Act, 1897 and Act, 1898. Besides others, it also referred to Rule 64(1) of Indian Post Office Rules which reads as under:
"64 (1). If the sender of a registered article pays at the time of posting the article a fee of one anna in addition to the postage and registration fee, there shall be sent to him on the delivery of the article a form of acknowledgement which shall be signed by the addressee or if the addressee refuses to sign shall be accompanied by a statement to the effect that the addressee has refused to sign."
23. Having referred to various provisions of Act, 1898 and Rules framed thereunder, the Court said, when the postmen or the clerks at the station of destination are required to do and what endorsements they are required to make, all such acts are clearly provided in the Statute. All such acts are done by them and all such endorsements are made by them in discharge of their offi cial duties. The Court, thus, proceeded further and held that a notice sent by registered post will be entitled to draw a presumption regarding due service of that notice vide Illustration (e) and (f) of section 114 of Act, 1872. In this re gard, the Court also referred to section 16 of Act, 1872 and said that as a propo sition, it cannot be disputed, when a letter is delivered to an accepting or re ceiving post office, it is reasonably expected that in the normal course it would be delivered to the addressee. That is the official and normal function of post office. Having said so, the Court further proceeded to hold that taking into consideration the manner in which the Post Office deals with registered let ters, the endorsement on the notice "Refused" strengthens the presumption that an attempt was made to deliver notice to the addressee. The Court in para 22 of the judgment clearly said:
"...with the endorsement "Refused" the presumption of service could be raised under section 27 of the General Clauses Act, and it would be a presumption of law, and not of fact."
24. It also held that a presumption of law is rebuttable unless it is made unrebuttable by some provision of law. The Full Bench disagreed with the view taken by Bombay High Court in Vaman Vithal v. Khanderao Ram Rao, [AIR 1935 Bom 247.] Nagpur High Court in Jankiram Narhari v. Damodhar Ramchandra, [AIR 1956 Nag. 266.] and Madhya Bharat High Court in Tekchand Devidas v. Gulab Chand Chandan Mai, [AIR 1957 MadhB. 151.] where the said three Courts have taken a view that there can be no presumption that endorsement of ''refusal' was made by postman unless the postman is examined, and, such endorsement was inadmissible in evidence. The Full Bench thus answered the question, accordingly, holding that postman is not necessarily to be examined by plaintiff.
25. The above Full Bench judgment in Ganga Ram (supra) has been referred to and approved by Apex Court recently in Samittri Devi v. Sampuran Singh. [(2011) 3 SCC 556 : 2011 (99) AIC 50 (SC) : 2011 (85) ALR 462 (SC).]
26. This issue also came up before Apex Court in Puivada Venkateswara Rao v. Chidamana Venkata Ramana, [(1976) 2 SCC 409 : AIR 1976 SC 869.] and in para 10 of the judgment, it held:
"It is not always necessary, in such cases, to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct."
27. In Har Charan Singh v. Shiv Rani, [1981 (7) ALR 206 (SC).] a three-Judge Bench (by majority held) with respect to notice when registered letter is returned with endorse ment of "refusal", said:
"Section 27 of the General Clauses Act, 1897 deals with the topic ''Meaning of service by post' and says that where any Central Act or Regulation authorities or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting it 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. The section thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under Illustration (f) to section 114 of the Indian Evidence Act whereunder it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumptions both under section 27 of the General Clauses Act as well as under section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise."
28. Again this issue came to be considered by a two-Judge, Bench of Apex Court in Anil Kumar v. Nanak Chandra Verma, [(1990) 3 SCC 603 : AIR 1996 SC 1215.] and while overruling this Court's decision in Shiv Dutt Singh v. Ram Das, [AIR 1980 All. 280 : 1980 (6) ALR 457 (SC).] it was held, in para 2, as under:
"2. The question considered in both the decisions was to the statement on oath by the tenant denying the tender and refusal to accept delivery. It was held that the bare statement of the tenant was sufficient to rebut the presumption of service. In our opinion there could be no hard and fast rule on that aspect. Unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption but if the testimony of the tenant itself is inherently unreliable, the position may be different. It is always a question of fact in each case whether there was sufficient evidence from the tenant to discharge the initial burden."
29. In Jagdish Singh v. Natthu Singh [1992 (19) ALR 297 (SC).] , the Court confirmed a decision of this Court in respect to presumption about service of notice received with the endorsement of "refusal" and held that presumption contemplated by section 27 of Act, 1897 must be drawn to deem service upon the addressee. In para 8 of the judgment, the Court said:
"In our opinion, the High Court was right in its view. The notices must be presumed to have been served as contemplated by section 27 oi the General Clauses Act."
30. I find a straight answer as to who should disprove the factum of offer of registered letter when returned by postal authority with the endorsement of "refusal" in Gujarat Electricity Board v. Atmaram Sungomal Poshani, [(1989) 2 SCC 602 : AIR 1989 SC 1433.] where it has been held:
"There is presumption of service of a 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 respondent failed to discharge this burden as he failed to place material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover."
(Emphasis added)
31. Following the Apex Court decision in Gujarat Electricity Board (supra) this Court in Jhabul Ram v. District judge, Ballia [1994 (23) ALR 464.] has also said, in para 9, as under:
"9. Bald denial of the petitioner could not absolve him from the burden of rebutting the presumption of service of notice arising from the endorsement by the postal authorities on the registered cover containing the notice. The Court below did not commit any error, muchless an error apparent on the face of record, in holding that the notice in question was duly served on the petitioner."
(Emphasis added)
32. I find another Apex Court's decision straight on this issue i.e., Basant Singh v. Roman Catholic Mission. [2003 (1) AIC 1 (SC).] In paras 8 and 10 of the judgment, the Court observed:
"The presumptions are rebuttable. It is always open to the defendants to rebut the presumption by leading convincing and cogent evidence."
"As already noticed, Hari Singh appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the Statute."
33. This Court has followed the above decision in Noor Mohammad v. XIV Additional District and Sessions Judge, Kanpur Nagar. [2006 (63) ALR 244.] Therein Revisional Court reversed Trial Court's order on the ground that tenant has tendered rent to landlord through money order which was received with the endorsement "refusal" by postman but when landlord denied tender of money order, tenant did not examine postman and hence failed to discharge burden lying upon him. In other words, the Revisional Court said that it is the sender who should examine the postman and not the sendee/addressee for whom the postal authorities have endorsed that it has refused to accept the article. This view of the Revisional Court was reversed by this Court, by ob serving:
"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 then it is for the person denying tender by the postman."
34. This Court also in Brij Nandan Gupta v. HI Addl. District Judge, Rampur, [ Writ-A No. 24853 of 1989, decided on 30.7.2012, reported in 2012 (94) ALR 593.] in para 21 of judgment said:
"Similarly, if a notice has been sent by landlord by registered post and it is received back with an endorsement made by an official of Post Office namely Postman that il was refused by the addresee, presumption of service upon addressee shall be drawn unless the tenant prove that the letter was never offered to him by the Postman and endorsement made thereon is not correct. The tenant's bare denial would not be sufficient in such a case and he will have to prove his case by adducing relevant evidence. Such denial can be by making statement on oath and in such case onus would shift on the landlord to prove that refusal was by the tenant which he can show by summoning the postman and adducing his oral evidence. However, this is one aspect of the matter. Sometimes from the conduct of tenant or other circumstances, his denial even if on oath, can justifiably be disproved by the Court without having Postman examined."
35. This Court has also taken a same view in Smt. Santosh Kumari v. 4th A.D.J., Bareilly. [2013 (96) ALR 524.]
36. There are two authorities of this Court where a different view has been referred. I find it my duty to discuss them also.
37.Smt. Sona Devi v. District Judge, Basti, [1983 ARC 799.] is a decision of a Single Judge of this Court observing, when the endorsement of "refusal" is disputed by defendant-tenant deposing statement in the witness-box and stating on oath that no notice was served, the burden would shift on the plaintiff to prove that the Postman have tendered the notice to addressee. The Hon'ble Single Judge has referred to only section 27 of Act, 1897 with respect to presumption but other provisions including section 14 of Act, 1898 and other authorities of this Court have not at all been referred to. The decision, therefore, has been rendered without referring to relevant provisions which robbed off its binding authority on account of application of doctrine of the ignoratia/per incuriam.
38. In Sagar v. Addl. District Judge, Lucknow, [1986 (1) ARC 475.] the testimony of defendant denying the offer of registered letter and refusal was found believable and the Trial Court was satisfied with the rebuttal of the defendant but Revisional Court reversed the same which was not found to be correct by this Court. The Trial Court being the Court of facts when record a finding in a particular manner, which is not found to be perverse or contrary to record, the Revisional Court has no reason to interfere in the arena of evidence and believing or disbelieving the evidence in a particular manner.
39. When the endorsement made by a Postman by virtue of section 14 of Act, 1898 is to be treated prima facie evidence of correctness of endorsement, this is a statutory presumption of evidence and can be rebutted by addressee by adducing adequate evidence failing which it is the addressee who will fail and not the sender. It is thus for the addressee to examine the postman to demonstrate that the endorsement made by him (postman) is not correct and mere fact that sender could not identify the Postman would make no different since it is wholly irrelevant."
24. Thus, in light of the aforesaid authoritative pronouncements which deals with the entire conspectus of the case on the subject, it has been held that when the endorsement is made by a postman then by virtue of Section 14 of the Act of 1898, the same is to be treated prima facie evidence of correctness of the endorsement. This being a statutory presumption of evidence, no doubt can be rebutted, by the person to whom the said postal article is addressed by adducing cogent and sufficient evidence, failing which the addressee will fail and not the sender. It is for the addressee to examine the postman to demonstrate that the endorsement made by him is not correct.
25. In light of the principles as extracted herein above, it would indicate that the revisionist as fallen much short of his requisite duty to rebut the presumption and, therefore, this Court has no hesitation to hold that the finding recorded by the Trial Court in so far as the service of notice is concerned does not suffer from any error and in this backdrop, it cannot be said that the presumption as raised by the Trial Court is erroneous. The Trial Court upon assessment of evidence has taken a view which is neither preposterous nor against the material on record. Thus, the aforesaid being a finding of fact cannot be disturbed in exercise of powers under Section 25 of the Provincial Small Causes Courts' Act.
26. The second submission of learned counsel for the revisionist in so far as the rate of rent is concerned, it would be relevant to point, that it is no more res-integra that admission is the best piece of evidence. In the instant case, the revisionist has admitted his signatures and handwriting on a rent note which was filed in original as document bearing No. C-48. The aforesaid rent note clearly indicates that the same was made by the revisionist and that it contains an admission that he has taken on rent a portion of the House No. 295/309, Asharafabad, Lucknow on a monthly rent of Rs. 600/- per month. In contradiction of the aforesaid document, there is no material which has been brought on record to dispute the said rate of rent. Though, a plea has been taken that the rate of rent was Rs. 100/- per month and by merely relying upon the documents as well as the papers tendered by which rent was deposited in the proceedings under Section 30 (1) of the U.P. Act No. 13 of 1972 it does not give any credence to prove the rate of rent hence the submission pales into insignificance since the proceedings under Section 30 Sub Section (1) of the Act of 1972 had been dismissed and there was no adjudication therein. Moreover, the proceedings under Section 30 are summary in nature and it only permits the alleged tenant to deposit the rent in Court at his own risk. The same cannot confer any benefit as the issue regarding the determination of rent is to be done in proceedings before the SCC Court upon leading of evidence.
27. The defendant has attempted to dispute the rent note by bringing on record another document alleged to be a rent note wherein the rate of rent has been mentioned as Rs. 100/-, however, it would be relevant to point that the same was a photocopy and the photocopy is not admissible in evidence. All this aspect of the matter has been considered by the Trial Court noticing that a photocopy is not admissible, accordingly, no error is committed by the Trial Court in coming to a finding regarding the rate of rent which is based on the evidence and admission of the revisionist himself.
28. In view thereof, this Court finds that no error can be pointed out in so far as the recording of the finding regarding the rate of rent is concerned by the Trial Court and moreover this also being a finding of fact unless pointed out to be perverse cannot be disturbed by this Court.
29. As far as the other submissions of the learned counsel for the revisionist is concerned, suffice to submit that the Trial Court having not decided all the issues is not going to materially affect the judgment, inasmuch as, in view of the Order 20 Rule 4 C.P.C., the judgment of the Judge, Small Causes need only to contain the points of determination and its decision thereon. On perusal of the record, this Court is satisfied that the entire defence as raised by the revisionist has been encapsulated in the points of determination which have been framed by the Trial Court and it has given its finding on all the points of determination as framed and, therefore, merely non-deciding the issues as were framed earlier on 19.03.2005 which in terms of Order 40 C.P.C. was not applicable to Provincial Small Cause Court's proceedings and moreso in absence of any prejudice caused, the aforesaid submissions lacks merit and is rejected.
30. The last submission which was feebly argued by Sri Tripathi regarding the title not being with the opposite party no. 1 also fails, inasmuch as, the opposite party no. 1 had brought on record the copy of the judgment of the title suit decided by the Court of Civil Jude, Senior Division, Mohanlalganj, Lucknow wherein the counter claim of the opposite party no.1 was decreed while the suit of Sri Smt. Veena Srivastawa was dismissed. The aforesaid judgment has been brought on record along with the document list dated 26.09.2015 and Sri Tripathi could not dispute the same. In light thereof, the aforesaid plea regarding the title of the opposite party no. 1 is not open to be urged by the revisionist and consequently it fails.
31. In view of the detailed discussions hereinabove, this Court is of the definite opinion that the judgment dated 07.11.2015 passed by the Additional District Judge, Court No. 9, Lucknow (acting as Judge, Small Causes) in SCC Suit No. 18 of 1999 does not require any interference. The same is affirmed the revision lacks merit and is dismissed. Costs are made easy.
32. The interim order, if any, stands discharged.
33. The registry shall remit the record of the SCC Suit No. 18 of 1999 to the Court concerned within a period of three weeks from today.
Order Date: 06.11.2019 Asheesh