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2016 DIGILAW 1982 (ALL)

Ashraf v. Kailash Prasad (Since Dead)

2016-05-20

SUDHIR AGARWAL

body2016
JUDGMENT Sudhir Agarwal, J. 1. Heard learned counsels for parties and perused the record. 2. This Revision under Section 25 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the "Act, 1887") has arisen from judgment and decree dated 22.04.2009 passed by Sri N.L. Agarwal, District Judge, Deoria decreeing SCC Suit No. 5 of 1986. 3. Plaintiffs-respondents instituted the aforesaid suit for recovery of rent and eviction of defendant-revisionist from Shop No. 105 of 2004 boundaries whereof were given at the bottom of plaint. The shop is situated at Bajaji Road, Nagar Palika Ward No. 7, Deoria. 4. The only argument advanced before this Court is that no notice determining tenancy or demanding rent was served upon defendant-revisionist and in that view of matter, suit could not have been decreed and Court below has erred in law in drawing a presumption of service against revisionist merely on the basis of the address mentioned in the carbon copy of notice and this approach on the part of Court below is patently illegal. 5. Plaintiffs stated that notice was served upon defendant-revisionist by registered post dated 17.08.1985, a copy whereof has been placed on record before this Court as Annexure-7 to affidavit with Stay Application, which shows only the name of addressee and there is no address mentioned in the said receipt. Service of notice was denied by defendant-revisionist, but Court below has drawn presumption only on the basis that letter was sent by registered post without there being any evidence to show that correct address was mentioned on the registered letter by plaintiff-respondent. Para 15 of judgment dealing Issue-3 with regard to validity of notice reads as under: "15. The plaintiff has filed the registered postal receipt (6/C) dated 17.08.85 and a carbon copy of the notice (7/C) and it has been clearly averred that quit-cum-demand notice was sent to the defendant on 17.08.85 which was received by the defendant on 19.08.85. As it is a registered notice sent through the postal authority, there is a presumption that that the notice has been delivered. The burden lies on the defendant to establish that no notice was served on him. There is a bare denial on the part of the defendant regarding receipt of the notice. Mere denial is not sufficient for holding that no notice was served. The burden lies on the defendant to establish that no notice was served on him. There is a bare denial on the part of the defendant regarding receipt of the notice. Mere denial is not sufficient for holding that no notice was served. Something more ought to have been done to establish that, in fact, the notice was not served on the defendant. No efforts were made by the defendant to establish that the notice was not served on him by calling for the record from the postal authority. No arguments regarding validity of the notice have been advanced as to what is the invalidity in the notice. The only question is about the service of the notice. In the present given facts and circumstances, I hold that the notice has duly been served on the defendant and it is perfectly a valid notice." 6. No doubt, once a registered letter has been sent which mentions correct address of the addressee, Court will be entitled to draw a presumption regarding due service of that notice vide Illustration (e) and (f) of Section 114 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872"). The presumption of service of a letter sent by registered post can be drawn only when it is shown that registered letter contains a complete and correct address of addressee and unless this much is shown, question of presumption even in respect to a letter sent by registered post would not arise. It is true that when a letter is sent by registered post, normal presumption of service is applicable, though it is rebuttable. It cannot be doubted that presumption under Section 114(g) of Act, 1872 is rebuttable. 7. Once the addressee deny receipt/service of registered letter, the addressor has the onus to show that it was sent mentioning correct and complete address of addressee, actually served upon or received by the addressee or he refused to receive the same though sought to be served upon him by the postal agent. In the present case no such evidence has been adduced by landlord to discharge initial onus lie upon him once service/receipt of notice was denied by tenant. 8. Here is not a case where either acknowledgement was received by the landlord containing signature of tenant or that letter/notice was received with endorsement of Postman that it was refused by the tenant. 8. Here is not a case where either acknowledgement was received by the landlord containing signature of tenant or that letter/notice was received with endorsement of Postman that it was refused by the tenant. In fact neither registered letter was received back by the landlord nor acknowledgement was received by him. It is in these circumstances presumption that letter sent by registered post must be deemed to have been served upon tenant and denial of tenant about its service/receipt itself would not be sufficient unless he prove otherwise, would not lie and this is not the correct approach to answer the problem. 9. It cannot be doubted that presumption of certain facts as illustrated in Section 114 is stronger when a letter is sent by registered post to the addressee. (See Harihar Benerji Vs. Ram Sahai Rai, AIR 1918 PC 102 ; and Balgovind Vs. Bhargova Book Depot, AIR 1958 All 369 ). 10. It also cannot be disputed, if a notice is sent by landlord to the tenant by registered post and acknowledgement is received back by the landlord containing signature of the tenant, presumption of service would have to be drawn against the tenant unless tenant prove otherwise by adducing relevant evidence as held in Green View Radio Service Vs. Laxmibai Ramji, (1990) 3 SCJ 325. 11. 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 it 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. 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. There is no hard and fast rule on this aspect as observed by the Apex Court in Anil Kumar Vs. Nanak Chandra Verma, AIR 1990 SC 1215 . 12. But these cases however have no application to the present case for the simple reason that here neither any third party intimation is available with the landlord that the tenant was served with the notice but he declined to receive the same nor acknowledgement has received/come in the hands of landlord containing signature of tenant to show its service. The only thing available in the present case is the fact that a registered letter with acknowledgement due sent by landlord to the tenant but the receipt thereof shows only name of addressee and there is no address mentioned in the said receipt. In such a case tenant's bare denial supported with an affidavit is sufficient rebuttal unless proved otherwise by landlord. Without anything further namely availability of acknowledgement containing signature of tenant or the postal agent's endorsement of refusal etc., the addressee may rebut the presumption by making statement on oath denying service of the registered letter. I need not burden this judgment with the catena of decisions on this aspect except simply referring to a few one namely Radha Kishan Vs. State of U.P., AIR 1963 SC 822 ; Appa Bhai Moti Bhai Vs. Lakshmi Chand Zaver Chand, AIR 1954 Bom 159 and Ram August Vs. Vindeshwari, AIR 1972 Pat 142 which fortify the view we have taken hereinabove. 13. Since in the present case, the addressor could not show that registered letter contain a complete and correct address of addressee, there was no occasion for Court below to draw a presumption of service upon addressee-revisionist and it has committed manifest error in taking a view otherwise, which cannot be sustained. 14. The finding in respect to Issue-3 recorded by Court below, therefore, cannot be sustained and the same is hereby set aside. 15. Once the notice is found not to have been served upon defendant-revisionist, the suit for ejectment obviously could not have been filed and, hence, impugned judgment cannot sustain. 16. In the result, revision is allowed. 14. The finding in respect to Issue-3 recorded by Court below, therefore, cannot be sustained and the same is hereby set aside. 15. Once the notice is found not to have been served upon defendant-revisionist, the suit for ejectment obviously could not have been filed and, hence, impugned judgment cannot sustain. 16. In the result, revision is allowed. Impugned order dated 22.04.2009 is hereby set aside and Suit No. 5 of 1986 is dismissed. 17. Certify this order to Lower Court immediately.