Dwarka Singh v. Sri Rattan Singh Ahuja — 1969 DIGILAW 128 (ALL)

JUDGMENT Dwivedi, J. - The appellant is the owner of a shop; the respondent the tenant thereof. The respondent fell in arrears of rent for more than three months. The appellant sent him a combined notice under Section 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act and Section 106 of the Transfer of Property Act. The notice was sent by registered post and with acknowledgement due. It came back to him with the remark of refusal. On the expiry of one month thereafter he instituted a suit for recovery of arrears of rent and ejectment of the respondent. The respondent contested the suit, inter alia, on these two grounds; (1) The notice was never tendered to him nor was refused by him; (2) at any rate, one months' notice was invalid for the lease was for a manufacturing purpose. The Munsif, who heard the suit rejected all the pleas of the respondent and decreed the suit for arrears of rent as well as ejectment. On appeal, however, the suit stood dismissed qua ejectment. The appellant then filed the present second appeal in this Court. 2. The appeal was heard, in the first instance, by a single Judge. As he felt that the question about the service of notice was important. He referred the appeal to a larger Bench of decision. That is how the appeal comes to us for decision. 3. We shall take up the question of notice first. The appellant sent a registered notice with acknowledgement due. As already said, it came back with the postal remark ; "Rattan Lal (the respondent) met but refused." This remark was written on the envelope by the postman, Dhiraj Singh. He was examined by the appellant. He said that he went to the shop of the respondent on May 2, 1964, and tendered the registered notice to Rattan Singh but he refused to take it. Then he noted down on the envelope "Rattan Lal met but refused". He has put down his signature and date under the remark. The cross-examiner asked him whether Rattan Singh to whom he tendered the notice was present in Court or not. He replied that Rattan Singh was not present. The Munsif did not make a note in his deposition that the respondent was present at the time. He has put down his signature and date under the remark. The cross-examiner asked him whether Rattan Singh to whom he tendered the notice was present in Court or not. He replied that Rattan Singh was not present. The Munsif did not make a note in his deposition that the respondent was present at the time. But it is clear from his judgment that the respondent was in fact present at that time. The Munsif should have made a note in his deposition to that effect. 4. The Munsif decreed the suit. He believed the evidence of the postman. According to him, the failure of the postman to indentify the respondent in the Court-room did not weaken his testimony. 5. On appeal, the Civil Judge disagreed with the Munsif. As the postman could not identify the defendant in the Court-room, he held that the "clear inference from the statement has been that he did not deliver the registered letter in question to the defendant". When counsel for the appellant tried to invoke the presumption that the postman must have acted fairly and must have followed notice, arising under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act, the Civil Judge declined to act upon the presumption. He said : "It is, however, clear on established principle of law that where facts are ascertained, presumption arising from conduct cannot establish a right which the facts themselves disproved." He further remarked : "It has also been held.................that the presumption that the official acts must be presumed to have been done in accordance with rules and laws is not a conclusive one and is not available when there is a clear evidence to the contrary. In this view of the matter there is no scope for drawing any inference because we had the statement of the postman as to how and to whom he effected the delivery of the registered letter in question." He has also relied on two circumstances. Firstly, he said that the remark of the postman on the envelope was unusual, inasmuch as he has specifically written that Rattan Singh met him but he refused. This'unusual' feature created suspicion in his mind that the postman has not acted fairly in the discharge of his duty. Secondly, the defendant had already defended an earlier suit instituted by the appellant. This'unusual' feature created suspicion in his mind that the postman has not acted fairly in the discharge of his duty. Secondly, the defendant had already defended an earlier suit instituted by the appellant. The first appeal filed by the defendant was decided on February 14, 1964. It appeared 'unreasonable' to the Civil Judge that the defendant would have committed the mistake of refusing to accept the notice and making himself liable for ejectment when admittedly he was in arrears of rent. It appeared quite probable to the Civil Judge that the appellant having failed to get the defendant ejected in the previous suit thought of taking advantage of the arrears of rent and manipulated fictitious service of the notice. So he held that the notice was not served on the respondent. 6. His finding is a finding of fact. Now, a finding of fact cannot generally be interfered with in a second appeal. But this general rule has got several exceptions. One of the exceptions is the failure of the lower appellate Court to invoke a presumption. On such failure the finding of fact loses immunity in second appeal. See Sita Ram v. Nanku, AIR 1928 Allahabad 16 and Bachha Lal v. Lachhman, AIR 1938 Allahabad 388. 7. It is evident from the judgment of the Civil Judge that he has refused to invoke the presumption regarding service of notice in spite of a request to that effect from counsel for the appellant. In justification of his refusal he has relied on two decisions : Udai Narayan v. Radha Shyam, AIR 1950 Orissa 36 and Kishori Lal v. Chalti Bai, AIR 1959 Supreme Court 504. In Udai Narayan's case (supra) a party tried to raise a presumption of fact under Section 114 of the Evidence Act. Section 27 of the General Clauses Act was not invoked. With reference to the presumption of fact arising under Section 114, the Orissa High Court said that it is not a conclusive one. As the evidence on record clearly proved that one of the persons has not been served with notice required by Section 212 of the Orissa Tenancy Act, no presumption could be raised under Section 114. In Kishori Lal's case it appears to us that a presumption in the real sense of the term was not invoked. As the evidence on record clearly proved that one of the persons has not been served with notice required by Section 212 of the Orissa Tenancy Act, no presumption could be raised under Section 114. In Kishori Lal's case it appears to us that a presumption in the real sense of the term was not invoked. The Supreme Court was really requested to draw an inference of fact from a certain conduct of a party. Both these cases are not helpful in the case before us. 8. In the instant case a combined notice under Section 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act and Section 106 of the Transfer of Property Act was sent by the appellant to the respondent. The mode of sending a notice under Section 3(1)(a) is not specified therein. But the mode of serving a notice under Section 106 is specified therein. One of the mode is to send the notice by post. It is proved in this case that the appellant sent a registered notice to the respondent. The address of the respondent is correctly stated in the notice. It was prepaid and posted by registered post. So, Section 27, General Clauses Act, is at once attracted to the case. Section 27 materially provides : "Where any Central Act ............authorises or required any document to be served by post, whether the expression 'serve' or either of the expression '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 raises a presumption; so does Section 114. But there is this great deference. Section 27 constructs a presumption of law; Section 114, only a presumption of fact. Section 27 invests the presumption with the majesty of a rule; Section 114 allows a Court discretion to raise or not to raise a presumption in the circumstances of a particular case. Under Section 27 the Court has no discretion. The Court is obliged by law to presume that service of the notice has been effected. Of course, the presumption is rebuttable. Under Section 27 the Court has no discretion. The Court is obliged by law to presume that service of the notice has been effected. Of course, the presumption is rebuttable. The burden of rebutting the presumption is on the addressee of the notice. In the present case it will be on the respondent. See Hari Har v. Ram Shashi, 1918 P.C. 102; Girish Chandra v. Kishore Moham, 23 C.W.N. 319; Bachha Lal v. Lachhman, AIR 1938 A 388 (supra), M.X. De Nornha and Sons v. Commissioner of Income-tax, (1950)18 ITR, 928; Bhagwan v. Commission of Income-tax, AIR 1952 Allahabad 857; Income-tax Commissioner v. Mal Chand, AIR 1956 Cal; Balbhaddar Mal v. Commissioner of Income-tax, AIR 1957 Punjab 284. 9. The approach of the Civil Judge was thus evidently wrong. He should have started with the presumption under Section 27, General Clauses Act, against the respondent. He should have placed on the respondent the burden of showing that the notice was not tendered to, and refused by him. As he has overlooked the compelling presumption under Section 27, we think we can go behind the finding of fact recorded by him and examine for ourselves whether the respondent has discharged the burden of proof which lay upon him by virtue of Section 27. 10. Before we examine this matter, it will be instructive to refer to certain provisions of the Post Office Act, 1898, and certain Rules made thereunder. Section 3(c) of that Act provides that for the purposes of that Act 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 authorised to receive the article according to the usual manner of delivering postal article to the addressee, shall be deemed to be delivery to the addressee. According to this section, the delivery of a post article at the office of the addressee is a good delivery for the purposes of the Post Office Act. Section 14(a) provides that in every proceeding for the recovery of any postage or other sum alleged to be due under the Post Office Act in respect of a postal article, the production of the postal article, having thereon the official mark of the Post Office denoting that the article has been refused, shall be prime facie evidence of the fact so denoted. So the remark 'refused' raises a presumption for the purposes of recovering dues under the Post Office Act. Section 51 provides a penalty where a person employed to carry or deliver any postal article in course of transmission by post and required while so employed to keep any register makes, or causes or suffers to be made, any false entry in the register with intent to induce the belief that he has visited the place, or delivered a postal article, which he has not visited or delivered, such a person is liable to be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one hundred rupees or with both. Rule 709 of the Post and Telegraph Manual provides that postmen are responsible for the correct delivery of all articles. Rule 711(i) provides that postmen are required to return to the clerk concerned, at the hour fixed by the post master, all the articles that they have been unable to deliver. When a registered article of the letter or parcel mail entered in the postmen's book is brought back undelivered, a remark stating that it was not delivered or paid should be written briefly but legibly on the address side by the postmen who should also note under his dated initials his number on the article and copy the remarks in his Book or on the delivery slip. It appears to us that these provisions of the Post Office Act and the Rules made there under amply justify the compelling presumption of law under Section 27. 11. Coming back to the essential question now, we have to see whether the respondent has succeeded in proving that the postman did not tender the registered notice to him on May 2, 1964. In his plaint, the appellant has stated that the registered notice was served on the respondent on May 2, 1964. The written-statement of the respondent contains two paragraphs in reply to the plea of the appellant in the plaint. In paragraph 7 of the written-statement it is said that his shop was closed on May 2, 1964, as he was busy in arranging for the marriage ceremony of a very near relation. So he was not present in the shop and no body tendered any notice to him on that day nor did he refuse to accept it. In paragraph 7 of the written-statement it is said that his shop was closed on May 2, 1964, as he was busy in arranging for the marriage ceremony of a very near relation. So he was not present in the shop and no body tendered any notice to him on that day nor did he refuse to accept it. In paragraph 15 it is said that he never refused to accept the notice. Indeed, he never knew that any notice was sent by the appellant. The postman concerned never tendered the notice. In order to rebut the presumption under Section 27 he has taken the specific plea that his shop was closed on May 2, 1964. In proof of this plea he produced no evidence whatsoever. Although he put himself in the witness-box, yet even he did not depose that his shop was closed on May 2, 1964. It is accordingly clear that his shop was open on May 2, 1964. This circumstances will, we think, add strength to the presumption. 12. Coming to the statement of Dhiraj Singh, the postman, he has said clearly that he went to the shop of the respondent on May 2 and tendered the registered notice to him, but he refused to accept it. Thereupon he made that remark on the address side of the registered letter, and put his initials and date under the remark. No doubt, he could not identify the respondent in the Court-room. But this circumstances is not sufficient to rebut the presumption under Section 27. It is an ambiguous piece of evidence. A postman may fail to identify an addressee of a registered letter in the Court-room because (i) he did not know the addressee from before the date of service and could not retain the addressee features in his memory, or (2) because he tendered the registered letter to a person other than the address in the house or office of the addressee, or (3) because he did not at all go to the house or office of the addressee and did not tender the registered letter to him. As the first possibility is also there, it cannot be said that the failure of the postman to identify the respondent is sufficient to rebut the compelling presumption under Section 27. As the first possibility is also there, it cannot be said that the failure of the postman to identify the respondent is sufficient to rebut the compelling presumption under Section 27. It appears from the cross-examination of the postman, Dhiraj Singh, that he did not know the respondent from before the date of alleged service of the notice. He states that, after enquiring as to who was Rattan Singh he tendered the registered letter to Rattan Singh and he refused. This shows that he was not familiar with respondent from before May 2, 1964. The date of service is May 2, 1964. He was examined on September 23, 1965, that is after more than one year and four months. It is difficult for a man to identify a person after such a long time, specially when the former is not familiar with the latter. The postman's failure does not clearly and unambiguously lead to the inference that he did not tendered notice to the respondent. In Malchand's case notice was delivered to a brother of the addressee. The brother had separated from him and was not concerned with the addressee's business nor was he authorised to receive notices on behalf of the addressee. He happened to be at the shop of the addressee casually. Two learned Judges of the Calcutta High Court held that the presumption under Section 27 was not rebutted. A fortiori, the identification mistake of the postman also cannot rebut the presumption. 13. The judgment of the Civil Judge shows that the failure of the postman to identify the respondent in the Court-room was the dominant reason for which he held that the registered letter was not served on the respondent. We have already shown that there he has clearly gone wrong. The two circumstances which he has tried to back to the identification mistake of the postman are really nothing more than a make weight. Neither in isolation nor in combination with the identification mistake of the postman, they are sufficient to rebut the compelling presumption under Section 27. No question was put to the postman as to why he noted down the words 'Ratan Lal met'. The respondent's name is Ratan Singh but the postman wrote 'Ratan Lal'. Had the postman been acting unfairly and in collusion with the appellant, it is difficult to believe that he would have committed this nominal slip. No question was put to the postman as to why he noted down the words 'Ratan Lal met'. The respondent's name is Ratan Singh but the postman wrote 'Ratan Lal'. Had the postman been acting unfairly and in collusion with the appellant, it is difficult to believe that he would have committed this nominal slip. He would have taken care to write the correct name of the respondent. If a tenant, admittedly in arrears of rent, is unable to pay up the entire arrears forthwith it is quite probable that he may seek to take time by evading service of notice on him. 14. Counsel for the respondents seeks to rely on Ramesh Chandra v. Bed Ram, 1964 AWRHC 333 and Badri Parshad v. Lakshmi Narain, AIR 1964 Allahabad 426. In the first case, a presumption Section 114 was got invoked, in the second case, a presumption under Section 27. The lower appellate Court did not believe the testimony of the postman. It is, not clear from the judgments as to what was the reason given by the lower appellate Court for discarding the evidence of the postman. So these cases will not afford guidance in this case. In the first case the learned Judges said; "The purpose of presumption is to fill a gap in the evidence but not to make false testimony truthful". This remark should be confined to a presumption of fact for, the rule of presumptions does not, we apprehend, admit of any such simplified generalisation. The irrebuttable presumption of law would not evince the purpose underlined in the aforesaid passage. It appears to us that presumption of law are legal fictions. They are designed for the sake of convenience and justice and are based upon vide human experience of connection between the fact proved and the fact to be proved. Truth may sometimes be not permitted to prevail over a presumption of law (see AIR 1956 Calcutta 537-Commissioner of Income Tax v. Malchand) for fiction is a litimatised error (The philosophy of as if by Vaihinger, page 106). In view of the foregoing discussion, we are of opinion that the respondent has failed to rebut the compelling presumption arising against him under Section 27 of the General Clauses Act. Accordingly, we hold that the registered notice was served on him. In view of the foregoing discussion, we are of opinion that the respondent has failed to rebut the compelling presumption arising against him under Section 27 of the General Clauses Act. Accordingly, we hold that the registered notice was served on him. We will like to make it clear that we have not formulated any general rule regarding the question of evidence for rebutting the compelling presumption under Section 27. Each case will be decided on its own facts and circumstance. And we are quite clear in our mind that on the facts and circumstances of this case the respondent has failed to rebut the presumption of service arising under Section 27. 15. The second ground may shortly be disposed of. Assuming that the making of photographs amounts to manufacturing, the respondent admitted in his statement that the shop was let to him for making photographs and selling articles pertaining the photography. The lease being for a mixed purpose cannot be said to be a lease for a manufacturing purpose. 16. So we allow the appeal, set aside the judgment and decree of the Civil Judge and restore the judgment and decree of the Munsif for ejectment of the respondent. 17. The appellant shall get his costs of this Court as well as of the lower appellate Court.