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Memon Adambhai Haji Ismail Vs. Bhaiya Ramdas Badiudas and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 544 of 1968
Judge
Reported inAIR1975Guj54; (1974)GLR655
ActsEvidence Act, 1872 - Sections 114; Bombay Rent Act - Sections 12; General Clauses Act, 1897 - Sections 27; Bombay General Clauses Act, 1904 - Sections 28; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12
AppellantMemon Adambhai Haji Ismail
RespondentBhaiya Ramdas Badiudas and ors.
Appellant Advocate B.K. Amin, Adv.
Respondent Advocate A.N. Divecha and; Suresh A. Shah, Advs.
Cases Referred and Venkatrao v. Vasavprabhu
Excerpt:
(i) tenancy - eviction - section 114 of indian evidence act, 1872 - appellant landlord of residential premises - sent notice to respondents for eviction and arrears - registered envelope received by appellant contained endorsement of 'refused' without being substantiated by any evidence would be sufficient for raising presumption that addressee had refused to accept delivery - held, presumption of fact that assessee had refused to accept delivery of letters can be raised under provisions of section 114. (ii) notice - section 12 of bombay rent act - whether under section 12 tenant who refused to take delivery can be posted with knowledge that landlord had given notice to pay arrears of rent - held, he can be posted with knowledge that landlord had given notice to pay arrears of rent. - .....a.d. desai, j.a - relevant facts to state briefly, are that the petitioner is the landlord of the first opponent in respect of residential premises. the petitioner gave a notice dated march 1, 1965 through his lawyer to the said opponent of eviction and demanding arrears of rent by registered post with an acknowledgment due. the envelope in which the notice demanding possession and arrears of rent was sent, is produced in the suit subsequently filed by the petitioner against the opponents to recover possession and arrears of rent. the possession of the suit premises was sought on various grounds including that of arrears of rent. the envelope produced in the case shows that there is an endorsement of 'not found' which is dated march 3, 1965. there is another endorsement of 'refused' dated.....
Judgment:

A.D. Desai, J.

A - Relevant facts to state briefly, are that the petitioner is the landlord of the first opponent in respect of residential premises. The petitioner gave a notice dated March 1, 1965 through his lawyer to the said opponent of eviction and demanding arrears of rent by registered post with an acknowledgment due. The envelope in which the notice demanding possession and arrears of rent was sent, is produced in the suit subsequently filed by the petitioner against the opponents to recover possession and arrears of rent. The possession of the suit premises was sought on various grounds including that of arrears of rent. The envelope produced in the case shows that there is an endorsement of 'not found' which is dated March 3, 1965. There is another endorsement of 'refused' dated March 5, 1965. On the other side of the envelope there are two cross lines across the name of the addressee tenant and between these two cross lines endorsement 'refused' is noted which bears the date of March 4,1965. The envelope with the endorsements thereon is exhibited in the case and bears Ex. 43. The tenant had also filed an application for fixation of standard rent in respect of the suit promises on April 6, 1965,under Section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Act) and Civil Revision Application No. 790 of 1968 relates to the fixation of rent under Section 11 of the Act. Explanation to Section 12 of the Act provides that a tenant if he makes an application under section 11 to the Court for fixation of standard rent before expiry of the period of one month after the notice of eviction, is deemed to be ready and willing to pay the amount of standard rent and permitted increases provided he tenant thereafter pays or tenders in Court the amount of rent or permitted increases specified in the order and by the Court. The question of service of notice dated March 1, 1965 of eviction of the tenant assumes importance because if the opponent tenant is held not to have received the said notice of eviction on either March 3 or 4 or5, 1965 then the tenant would get protection under the explanation to Section 12 of the Act and a decree of eviction cannot be passed. To complete the facts it may be mentioned that subsequently on March 6, 1965 the landlord had sent the very notice of eviction by a certificate of posting which would have reached the opponent-tenant in ordinary coarse of business on March 7, 1965. The landlord again gave another notice of eviction on various grounds including that of arrears of rent and this notice was sent by a registered post and a copy thereof was sent by a certificate of posting. So far as the, notice of eviction and demand of rent dated March 1, 1965 is concerned the case of the tenant in his written statement is that he had not received the same. However, the tenant has not said a word on this point in his deposition. No issue was sought on the point of service or delivery of registered notice dated March 1, 1965 and the point was not argued in the trial Court or the lower appellate Court that there was no service or delivery of the notice in fact and the effect thereof. The trial Court passed a decree of eviction against the tenant and in the appeal filed b y the tenant against the said decree, the same was confirmed. The tenant filed Revision Application No. 544 of 1968 in this Court wherein the arguments in respect of notice dated March 1, 1965 were advanced to the effect that mere endorsement of refusal purporting to have been made by a postal official on a returned envelope without being substantiated by any evidence of the postal officer who went to deliver the letter to the addressee would not be sufficient for raising a presumption, statutory or factual, fiat the addressee in fact refused to accept the delivery of the letter and that in view of the special provision of Section 12 of the Act the addressee tenant who refused to take delivery of the registered letter addressed to him could not be posted with knowledge of the contents of the notice. The learned Single judge found that on the points raised before him the decisions of the Bombay High Court as well as of the other Courts are not uniform and, therefore, referred two points for determination to a larger Bench. The points referred by him are:

'(i) Whether the mere endorsement of 'Refused' found on the returned registered envelope without being substantiated by any evidence of the postal peon who went to deliver the letter to the addressee would be sufficient for raising presumption statutory or factual, that the addressee had, in fact, refused to accept the delivery of that letter?

(ii) Whether in view of the special provisions contained in Section 12 of the Rent Act, the addressee-tenant who has refused to take delivery of a registered letter addressed to him can be posted with a knowledge that his landlord has given him a notice to pay up the arrears of rent?'

Under the orders of the learned Chief Justice this Full Bench has been constituted for determining the aforesaid two questions.

2. The first question that is raised is whether when notice dated March 1, 1965 demanding the rent and possession of the premises under the provisions of the Rent Act was sent by the lawyer of the landlord by registered post with an acknowledgement due to the opponent and returned with two endorsements dated March 4, 1965 and March 5, 1965 of refusal, a presumption of due service of the notice can arise in Law. The arguments advanced on behalf that such a presumption does arise in view of the provisions of Section 27 of the General Clauses Act, 1897 or Section 28 of the Bombay General Clauses Act, 1904 and under Section 114 of the Indian Evidence Act. Before we refer to the aforesaid provisions of law we shall first take into ac-, count the provisions of Section 12(2) of the Act, which provide that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of nonpayment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882. What the aforesaid provision require is that before a for possession on the ground of arrears of rent is filed a notice demanding the arrears of rent, possession of the premises and terminating the tenancy has to be served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act. The relevant part of Section 106 of the Transfer of Property Act provides that every notice under this section must be in writing, signed by or on behalf of the person giving it, and may be sent by post to the party who is intended to be bound by it. Having noticed these relevant provisions we shall refer to Section 27 of the General Clauses Act which is as under:

'27. Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the times at which the letter would be delivered in the ordinary course of post.'

Section 28 of the Bombay General Clauses Act provides:

'28. Where any Bombay Act, or Gujarat Act made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions give or send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to e effected by properly addressing, prepaying and posting by registered post, a letter containing the document, any, 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.'

It is obvious that Section 27 of the General Clauses Act and Section 28 of the Bombay General Clauses Act are identical. The question whether in the present case the provisions of Section 27 of the General Clauses Act or Section 28 of the Bombav General Clauses Act apply loses all its importance because the sections are similarly worded and are identical. The purpose of the General Clauses Acts is to place in one single statute different provisions as regards interpretations of words and legal principles which would otherwise have to be specified separately in many different Acts and Regulations. Whatever the General Clauses Act says whether as regards the meanings of the words or as regards legal principles has to be read in every statute to which it applies, vide Chief Inspector of Mines v. Karam Chand Thapar, : (1961)IILLJ146SC . New Section 27 of the General Clauses Act, 1897 is divisible in two parts. The first part deals with the mode of service and the second part deals with the time of service on the proof of facts that a letter on which tamp has been paid properly, which is properly addressed, which contains the document and which was sent by registered post a two fold presumption arises under the section, namely, (i) that the service shall be deemed to have been effected; and (ii) deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post. The said presumption is rebuttable because the words 'Unless the contrary is proved' govern both the parts of the section. It was vehemently argued be fore us that the aforesaid words relate and the only to the second part of the section PS in respect of the service of the letter the an presumption which arises under the first part of the section is conclusive. Reliance was sought to be placed on the decision in The King V. Westminster Unions Assessment Committee, Ex parte Woodward and Sons, (1917) 1 KB 832, wherein Section 65 of the Valuation (Metropolis) Act, 1869 came for interpretation before the Court. It is not possible to accept this argument. It is true that words 'unless the contrary is proved come just before the words 'to have been effected at the time ate.' but the whole import of the section seems to be that the two fold resumption arising under that Section holds good unless the contrary is proved. There is no reason to assume that the first part of the section containing the words 'service shall be deemed to be effected' is' to be treated as a complete sentence before we read the words 'to have been effected at the time etc.'. The words of the section are such that the appropriate place which the words 'unless contrary is proved' can be conveniently inserted is at the place where the are as the intention of the legislature is that these words must govern both the parts. If the presumption of the service is to be treated as conclusive, evidence to prove that in fact service had not been made would be inadmissible and that cannot be the intention of the legislature especially when the legislature was enacting such vision in the General Clauses Act. Whenever the legislature intends to make a statutory presumption as conclusive it ordinarily does specifically say so. It is, therefore, legitimate to hold that the two-fold presumption arising under Section 27 of the General Clauses Act is a rebut table one. The consequence is that the words 'unless the contrary is proved' govern both the parts of the section. In this view of ours we are fortified by the decisions of the Allahabad High Court in L. C. De Souza, Cawnpore, In re. : AIR1932All374 and Badri Prasad v. Lakshmi Narain, : AIR1964All426 . Now in the case of Ex parte Woodward and Sons (supra) the relevant part of Section 65 which came for interpretation before the Court was as follows:

' They may also be served and sent by Post, by a prepaid letter, addressed to such person, or to the office of such body or to their clerk, and, if sent by post, shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post, and in proving such service or sending it shall be sufficient to prove that the letter containing the notice was properly addressed and prepaid an put into the post.'

The question involved was in respect of assessment of a property and the law required that a notice by post be served in case where valuation was sought to be revised to the detriment of the owner. The following passage in the judgment of Viscount Reading C. J. has been relied upon:

'A notice prepaid and addressed as directed by Section 65 if sent through the post shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post'. That provision applies to a case where in fact the notice has not been received otherwise it has no meaning. The intention is to treat as a fact something which has not been established as a fact-even something which can be shown not to be a fact. The section continues: 'and in proving such service or sending it shall be sufficient to prove that the letter containing the notice was properly addressed and prepaid and put into the post'. In my view when those conditions have been performed it must be taken as concluded that the notice has been served and received. In this opinion I am fortified by the whole scheme of the Act. It is most important for the local government of the county that assessments should be made by a properly constituted committee whose duties and obligations should be defined by statute. We are not dealing with reciprocal rights and duties of individuals.'

Now the Court in that case was dealing with a section in which the words 'unless the contrary is proved' are not to be found. The section was read as a whole and along with the other provisions of the Act and having so read it was held by the Court that the presumption arising there under was conclusive one. Lush J. who also gave the judgment in that case observed that it was necessary to consider the language of Sections 41 and. 42 of the earlier Act, the Union Assessment Committee Act, 1862 which for the purposes of the metropolis only had been superseded by Section 65. The learned judge further observed that these two enactments standing side by side, one of them applicable to the metropolis only and the other to places other than the metropolis and, therefore, how could it be said that the additional words in Section 65 had no operation and were intended to effect no alteration in law? The learned judge further proceeded to consider the entire scheme of the Act and held that the presumption that arose under the provisions of Section 65 was conclusive. Thus the said decision cannot be of any assistance in construing Section 27 of the General Clauses Act which is differently worded. In Regina v. County of London Quarter Sessions Appeals Committee, Ex parte Rossi, (1956) 1 QB 682, a notice by post pursuant to Section 3 (1) of the Summary jurisdiction (Appeals) Act, 1933 of the date, time and place fixed for hearing of an appeal was given by the mother of an illegitimate child from the dismissal of her summons against a man whom she alleged to be the father of the child. The notice was returned to the sender with postal mark 'Undelivered...... no response'. The Court in the case was concerned with interpretation of Section 26 of the Interpretation Act,1889 which is in identical terms with Section 27 of the General Clauses Act. Denning J. observed as under:

'In the present case, therefore, when the case was called on for hearing on September 28, 1954, and Mr. Rossi did not appear, it was essential for counsel for Mrs. Minors to prove service of the notice in accordance with Section 8 (1) of the Act. He had to prove that the clerk of the peace had in due course given Mr. Rossi notice of the date, time and place of the hearing. This could be done by proof that a notice had been sent to him in good time by post in a registered letter which had not been returned, for, it could then be assumed that it had been delivered in the ordinary course of post; see Section 26 of the Interpretation Act 1889. But once it appeared that the letter had been returned undelivered then it was quite plain that he had notice been given notice at all of the date, time and place of the hearing. In short, service not been effected; and the Court should not have entered upon the hearing at all.'

Morris L . J. made the following observations:

'Then by the concluding words of Section 26, the sending of the notice was deemed, unless the contrary was proved, to have been effected at the time at which the letter would have been delivered in the ordinary course of post. But here the contrary was proved. It was proved not merely that the letter was not delivered in the ordinary course of post but that the letter was not delivered at all. Service cannot in this case be deemed 'to have been effected' at some particular time, i.e., in the ordinary course of post: service was proved not to have been effected at all.'

The said decision came up for consideration before Lord Denning, M. R. in Hewitt v. Leicester Corpn., (1969) 2 All ER 802, where a notice sent by post was returned with the postal mark 'gone away'. Lord Denning. M. R. observed as follows:

'I prefer to go by the earlier decision of this Court in R. v. Appeal Committee of County of London Quarter Sessions, Ex parte Rossi, (1956) 1 QB 682, There a bastardy summons was returned to the sender marked undelivered .... no response'. It was held that it had not been served ......

This is a case like Rossi's case where the time of service was important, The valuation depended on it. Once it appeared that the letter of 20th May 1965 was returned through the post marked 'gone away', then it was quite plain that it was not served at all. We are not bound to 'deem' a notice to be served at a particular time, when we know that in fact it was not served at all. 'In Beer v. Davies, (1958) 2 QB 187, Lord Goddard C. J. considered the decision in Ex parte Rossi and observed as under:

'In Reg. v. County of London Quarter Sessions Appeals Committee, Ex parte Rossi, (1956) 1 QB 682, the Court of Appeal seem to me to have decided that where a notice is served by registered post or is purported to be served by registered post, it is not enough to prove that it was correctly directed, stamped and posted. That is prima facie enough, but it can be shown that the letter was never delivered, and if it was never delivered then the Court of Appeal has said that there has not been service and that section 26 of the Interpretation Act does not assist.'

The aforesaid decisions clearly lay down that the presumption of service which arises under the first part of Section 26 of the Interpretation Act of 1889 which is identical in terms with Section 27 of the General Clauses Act, is rebut table and supports the view which we have taken.

3. It was sought to be argued, in the alternative, that the words 'until the contrary is proved' must only refer to the conditions contained in the first part of the section and have no reference to actual service and if any of these conditions are not proved, the presumption that arises under the section is taken away. For this argument reliance was sought to be placed in Mrs. Achamma Thomas v. Fairman, AIR 1970 Mys 77 and on the following passage:

'It is contended by the respondent's counsel that in this case the very fact that the registered letter has come back with the endorsement as mentioned above, shows that the contrary has been proved, namely that there has been no due service effected on the tenant; on the other hand, it is submitted that the service would be deemed to be effected if the four conditions are fulfilled namely, sending the letter by registered post, it being properly addressed, prepaid and the letter contains the document; the contrary that is required to be proved to take away the presumption is with reference to the four requirements referred to above. It appears to me that this contention is not without force. It is only to meet the contingency of a person who is to be served with the notice trying to evade it, that the service shall be deemed to have been affected if the four conditions are fulfilled. If the contrary to be proved has reference to be actual service then provision of Section 27 could be rendered useless by the addressee providing to receive the letter or even refusing the registered letter.'

With respect to the learned judge of the Mysore High Court it is not possible to accept this argument. The words 'unless to the contrary' cannot be construed in such a narrow manner and full meaning to the words used must be given. Presumption under Section 27 can arise only on the proof of the conditions set out in first part of the section. The existence of each of the conditions is to be established by positive evidence and it is only then that the presumption under the section can arise. If the evidence on the record is insufficient to establish any one of the conditions the presumption cannot arise. The conclusion is that when it is proved that the registered letter with repaid stamps containing the document has been posted at the proper address of the addressee, a prima facie presumption arises viz. that the notice was served, meaning thereby, that the letter reached its destination at the proper time according to the regular course of business of the post office and it was received by person to whom it was addressed. Dealing with this question Their Lordships of the Privy Council in Harihar Benerji v. Ramsashi Roy, 45 Ind App 222 = 21 Bom LR 522 : (AIR 1918 PC 102) observed:

':....................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. That presumption would appear to their Lordships to apply with still greater force to letters that the sender has taken the precaution to register ..........'

The same conclusion was arrived at in Baluram v. Bai Pannambai, (1911) ILR 35 Bom213. As the presumption is rebut table, can be shown, by leading reliable evidence by the addressee that the letter was never delivered to him in fact in which case it will be held that there was no service. Thus the presumption which arises under the section stands rebutted, No general rule are tee laid down as to what evidence can be Cleared as sufficient to rebut the presumption arises under Section 27.of the General Clauses Act. In the case Roop chand Rangildas v. Haji Hussain Haji Mahomed, 16 Bom LR 204: (AIR 1914Bom 31),Mr. justice Beaman after referring to the provisions of Section 27 came to the that a prima facie presumption of service arises under Section 27 and observed as under:

Thus it lies on the defendant in this case to prove that it was not delivered. I think for all practical purposes that the is actual delivery, and that the defendant may not take advantage of his own refusal to accept delivery when tendered. That is to say if the summons in a registered cover be tendered to, and refused by, him, he refuses at his own risk. Where he disputes the actual delivery or tender of delivery, it is a mere question of fact, and the onus is on him.'

This decision completely supports our aforesaid conclusion.

4. It was then argued that ban unopened registered letter has been received back, by itself shows that Section 27 of the General Clauses Act cannot come to any assistance or the said circumstance is sufficient evidence to rebut the presumption that arises under the said section. It was contended that when an unopened envelope is before the Court can it beside the service thereof can be deemed to have been effected? The very fact of an unopened cover being before the Court negatives the deemed fiction. The arguments are no doubt at first sight attractive but have to stand the test of scrutiny. The legal fiction incorporated in Section 27 is that when a letter prepaid, properly addressed and is sent through registered post then it shall be deemed to have been served at the time when the letter would be delivered in the ordinary course of post. When a statute enacts that something shall be deemed to have been done which in fact and truth was not done the Court is entitled and bound to ascertain what the purposes and between what person the statutory fiction is to be resorted and full effect should be given to the statutory fiction and it should be carried to its logical conclusion. The statute directs the Court to imagine certain state of affairs; it does not say having done so the Court should permit imagination to boggle when it comes to the inevitable corollaries of that state of affairs, vide State of Bombay v. Pandurang Vinayak, : 1953CriLJ1049 , The purpose why the fiction has been raised under Section 27 is to do away with the proof of service and thus avoid inconvenience and expenses when certain conditions are fulfilled by a sender of a registered letter. In order to achieve this object the legislature has a recourse to the public department namely, the post office and enacted that prepaid registered letter properly addressed has been handed over to the postal authority, it must be taken that it is duty delivered, as letters in the ordinary course are duly delivered. A letter so posted, is to be taken to have been received by the addressee unless the contrary is proved, may happen that when a notice is not received there would be hardships to an individual but looking at tie. Provisions of Section 27, the legislature did intend 0iat the burden must fall on the addressee. The object of the provisions of Section 27 is to ease the burden on a person who sends a registered letter and fulfils the conditions laid down in Section 27. The legislature transfers in such cases the burden to prove non-delivery on the addressee. This is so because in great in majority of cases actual delivery of notice by registered letter is, achieved and only in exceptional cases it will be otherwise. On be proof that the letter was properly addressed, prepaid, registered and put into post office, the rest follows without further proof viz. that the document has been served upon and received by the addressee. The Court has to give effect the presumption that arises under Section 27 even in a case where the registered letter has been returned unopened. A registered letter may be returned back to the sender for various reasons. To illustrate, when the addressee's house is found to be closed or he is out of place or has left the house or refuses to accept. Thus mere fact of the return of a registered letter which may be Produced in, the Court cannot lead to the one conclusion that the service had not been effected. The normal rule of construction is that the evidence must be read as a whole. The provisions of the Post Office Act and Rules show that a registered letter with an acknowledgment due can only he returned with an endorsement either of 'not found' or 'not claimed' or 'Refused' etc. The registered envelope must be read as a whole and not in part. The Court cannot, therefore, rely upon the circumstance of the return of the envelope only as that will be tantamount to reading the evidence in part. The Court is bound to raise a presumption of delivery under Section 27 ' of the General Clauses Act even in a case where the registered letter is received back without endorsement as the statutory fiction has to be taken to its logical end. So far as the endorsement of either 'not found' or 'not claimed' or 'refused is concerned, the Court has to take notice of Section 114 of the Indian Evidence Act which 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 private business, in their relation to the facts of the particular case. Illustrations (e) a (f) to the section explain the said provisions. it is provided in illustration (e) that Court may presume that judicial and official acts have been regularly performed. Illustration (f) provides that the Court may presume that the common course of business has been followed in particular cases. We way also refer to the Rules of the Indian Post Office framed under the Post Office Act relating to the registered articles. Rules 62, 63 and 64 (1) and (2) read as follows:

'62. A receipt shall be given to the person who presents an article for registration at the post office window during the hours prescribed for posting registered articles.

63. No registered article shall be delivered to the addressee unless and until he or his agent has signed a receipt for it in such form as to the Director General shall prescribe.

64 (1). If the sender of a registered article pays at the time of posting the article from of ten naye Paise in addition to the postage and registration fee, there shall be sent to him on the delivery of the article a form of acknowledgment which shall be signed in ink by the addressee or his duly authorized agent or if the addressee refuses to so s shall be accompanied by a statement to T11 effect that the addressee or his duly authorised agent has refused to so sign:

'Provided that no fee shall he payable in respect of a registered 'Blind Literature' packet for which an acknowledgment is required.

(2) No article for which an acknowledgment is required under sub-rule (1) shall be accepted for registration unless it bears the name and address of the sender and is accompanied by a prescribed form of acknowledgment duly filled in and securely fastened to such article, and unless the article bears the superscription Acknowledgment Due on the address side.'

Paragraph 191 of the Posts and Telegraphs Manual, Vol. VI provides the manner in which the refused registered article shall be dealt with and the relevant portion thereof provides that inland registered articles or the letter mail which are refused by the addressee and which have the name and address of the sender clearly written on them, should not be kept in deposit, but should be marked 'Refused' and sent by the first post with the acknowledgment, if any, to the office of posting for delivery to the sender. These provisions indicate the regular course of business in the post office. When a registered letter is handed over to the receiving post office, it is the official duty of the postal authority to make delivery thereof to the addressee. Consequently it is legitimate to expect that a registered letter would be delivered in normal course to the addressee, as that is the official and normal function of the post office. Once the article is delivered Ito the post office it remains with it unless it is delivered to the addressee or returned to the sender and there is no scope for any person to intermeddle with the letter. When the letter is refused by the addressee an endorsement there on is made by the postman and he does so in discharge of his duties. The into consideration the manner I when post office deals with a registered letter, the endorsement on a returned un opened envelope of refusal raises a presumption that an attempt was made to deliver the notice to the addressee and he refused to sign the receipt. The presumption of delivery which arises under Section 27 in the General Clauses Act is in such cases strengthened by the presumption which arises under Section 114 of the Indian Evidence We Act. The presumption that arises under Section 114 of the Indian Evidence Act is one of fact. It is not obligation the Court to raise a presumption under that section. The Court may refuse to do so, if 'the evidence on record or the circumstances of the case raise any doubt. It must be mentioned that it will facilitate the Court to raise a presumption under Section 114 of the Indian Evidence Act if evidence is led by the sender to the effect that the registered letter had no endorsement at the time when it was posted and that endorsement was in existence at the time when unopened registered letter was returned to him. if such evidence is or-, record it will greatly assist the Court in exercising its discretion of raising a presumption under Section 114 of the Indian Evidence Act. It is not possible to lay, down general rule when the Court should raise presumption under the section or refuse to do so. Each case must be decided on its own facts. If a registered letter is accepted by the addressee he would be deemed to have knowledge of its contents even if he never cared to read the same. On a parity of reasoning the addressee would be deemed to have knowledge of the contents of a registered letter when he refuses the receipt of it. The Court must be guided in each case by the special circumstances as to how far it will effect to the endorsement on the return cover. In our conclusion on the aforesaid points we are supported by the decisions in Gopal Raghunath v. Krishan,3 Bom LR 420; Baluram v. Bai Pan2a9woba'i (1911) ILR 35 Bom 213; Appabhai Motibhai v. Laxmichand Zaverchand and Co., : AIR1954Bom159 ; Bai Sbanta v. Kbalas Ramjibhai Chhotalal, AIR 1.956 Born 144; Jugalkishore Jodbalal v. Bombay Revenue Tribunal, : AIR1959Bom81 ); Shamsadhi Naga Pinjari v. Gunvautibai Ramsnehi, : (1972)74BOMLR723 ; Ganga Ram v. Smt. Phulwati, : AIR1970All446 ; Raunaq Ram v. Prabb Daval, AIR 1930 Lah 439; Munni Devi v. Puspalata Mondal, (1967) 71 Cal WN 282; Ramayya v. Venkatachellamma, : AIR1953Mad834 ; Balbhadar Mal v. Conar.r. of Income Tax, Punjab, ; and Mrs. Achamma Thomas v. E. R. Fairman, AIR 1970 Mys 77. The same view has been taken by J. B. Mehta, in Special Civil decided on 9-9-1970(Guj) and myself in Second Appeal No. 629 of 1968 decided on 5-12-1968 (Guj). The presumption arising under Section 114 relates to an official act being done in a regular manner and if the Court is not in a position to raise such a resumption in respect of the endorsement, the Court should not exhibit the endorsement but exhibit only the returned envelope and in that case the evidence of returned envelope is itself sufficient to rebut the presumption of the letter being received by the addressee which arises under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act. Once presumptions arise under Section 27, of the General Clauses Act and Section 114 of the Indian Evidence Act, the burden to rebut the said presumptions would be on the addressee in case where the letter is return ed back with an endorsement of 'Refused' one who challenges an endorsement made by the postal authority in discharge of the duties has to lead evidence to rebut the presumption arising because of the endorsement. The question then is one of rebuttal by lead by evidence and such question can he raise only at the stage of trial of the suit. Such a question which depends upon leading evidence cannot be raised for the first time in appeal or revision. If the registered envelope containing the endorsements received in evidence and marked as an exhibit in the case, the endorsement made thereon cannot be questioned in appeal or revision arising out of the suit in which the envelope is exhibited,

5. On behalf of the tenants reliance was sought to be placed on the decision in Vaman Vithal v. Khanderao Ram Rao, AIR 1935 Born 247:37 Bom LR 376, and particularly on the following passage occurring in the judgment of Beaumont, C. J.:

'In the case of defendants 4 and 5 a registered letter containing the notice was sent to them duly addressed, and service is alleged to have been refused. In fact the refusal was not proved, as the postman who took the letter and brought it back was not called. But in any case, even if the refusal had been proved, I should not he prepared to hold that a registered letter tendered to the addressee and refused and brought back unopened, was well served. There are, I know, some authorities in this Court to the contrary, but it seems to me impossible to say that a letter has been served so as to bring the contents to the notice of the person to whom the letter is addressed, if the agent for service states that in fL4 the notice was not served, although the reason may have been that the addressee declined to accept it. One cannot assume that because an addressee declines to accept a particular sealed envelope he has guessed correctly as to its contents. Many people in this country make a practice of always refusing to accept registered letters, a practice based, I presume on their experience that such documents usually contain something unpleasant. So that, it is clear that this notice was not served on three of the defendants.'

It was also sought to be argued that unless the endorsement on the envelope is proved in the manner in which it is capable of proof, no presumption under Section 114 of the Indian Evidence Act can be raised and for this purpose reliance was placed on the decisions in Jankirain Narhad v. Damodhar Ranichandra, AIR 1956 Nag 266; firm Ganeshdas Kishnaji v. Murfidbar AIR 1956Madh B. 151; a-ad Mahboob I v. Alvala Lachiniah, : AIR1964AP314 . Now it appears that in the decision of Varnan Vithal Ku,karni (supra) the provisions of Section 114 of the Evidence Act were not brought to the notice of the Court. The observations made by Beaumont C. J. have been treated as obiter and doubted in two subsequent decisions of the Bombay High Court, vide, Babasaheb Appasaheb V. Laxmanappa Ramappa, 40 Born LR 1015 : (AIR 1938Bom 492) and Venkatrao v. Vasavprabhu, 45Boin LR 754 : (AIR 1943 Born 348). As pointed out earlier, from the manner in which the post office deals with the registered letter, it can be presumed by the Court under Section 114 of the Indian Evidence Act that the endorsement there on was made by the postman in discharge of his official duties, and the said endorsement can be relied upon to raise presumption under Section 114 of the Indian Evidence Act, that the delivery of the registered letter was refereed to the addressee and he refused to sign the receipt, in case where the endorsement is one of refusal. The Court can raise such a presumption on the basis of the endorsement of refusal in spite of the fact that evidence of the authority who made the endorsement is not led in the case. For the reasons already given we do not agree with the proposition Of law laid down in the aforesaid decisions of the Bombay, Nagpur and Andhra Pradesh High Courts.

6. Now we shall consider the second question which is referred to us. The provisions of Section 12(2) of the Rent Act have been noted herein before and they refer to the notice of demand of rent. The object of Section 12(2) is to restrict the right the landlord to recover possession on the ground of non-payment of rent and require that a notice be given demanding the rent due in the manner provided in Section 106 of the Transfer of Property Act. The said section provides a safeguard to the tenant against forfeiture of his tenancy on the ground of nonpayment of rent because a landlord can e a suit on the ground o non-payment of rent only after giving a notice demanding the rent due and terminating the tenancy. There can be one combined notice demanding arrears of rent and terminating the tenancy. The notice has to been as per the manner provided in See. 106 of the Transfer of Property Act. Therefore if the notice that is contemplated in Section 12(2) is duly served on the tenant as per the manner and provisions of Section 106 of the Transfer of Property Act and if the provisions of Section 27 of the General Clauses Act are complied with a presumption arises that the notice was duly served on and received within proper time by the addressee. This presumption will be under Section 27 of the General Clauses Act. If there is an endorsement of refusal on the envelope a presumption under S. 114 of the Indian Evidence Act also arises viz. that the notice was duly tendered to the tenant but he refused to receive the same and consequently the tenant had the knowledge of the contents of the notice. The special provisions of the Rent Act, in opinion makes difference in this aspect of the law.

7. We shall summaries our conclusions, and they are:

(1) That on the proof of the facts that a prepaid, properly addressed letter containing the document was sent by a registered post, a presumption under Section 27 of the General Clauses Act or Section 28 of the Bombay General Clauses Act arises that the registered letter reached its destination at the proper time and was received by the addressee.

(2) The words 'unless the contrary is proved' govern both the parts of See. 27 or 28 of the said Act and the presumptions arising there under are rebuttable.

(3) That the mere production in Court of an unopened envelope of a registered letter bearing an endorsement of refusal does not by itself rebut the presumption arising under Section 27 or 28 of the General Clauses Acts.

(4) That the Court may raise a resumption under Section 114 of the Indian Evidence Act on the basis of the postal endorsement of refusal on the envelope that the registered letter was tendered to the addressee, that he refused to accept the same and that he knew the contents of the letter. The addressee leading evidence to the satisfaction of the Court can rebut the said presumption. The provisions of Section 12 of the Rent Act make no difference. if the envelope bearing the postal endorsement is marked as an exhibit in the case, then question relating to the proof thereof cannot be raised for the first time in an appeal or a revision that is filed against the decree in the suit in which the envelope is exhibited.

(5) That the Court may raise presumption under Section 114 of the Indian Evidence Act on the basis of the postal endorsement marked on the envelope of a registered letter, even though the author thereof is not examined as a witness.

(6) The presumption arising under Section 114 of the Indian Evidence Act relates to official acts being done in a regular manner and if the Court is not in a position to raise such a presumption in respect of the endorsement, the Court should not exhibit the endorsement but exhibit only the returned envelope and in that case the evidence of returned envelope is itself sufficient to rebut the presumption of the letter being received by the addressee which arises under Section 27 of the General Clauses Act or Section 28 of the Bombay General Clauses, Act and Section 114 of the Indian Evidence Act.

8.Therefore, our answers to the two questions referred to us are as follows:

Answer to the first question is:

114

Answer to the second question is:

That in a case under Section 12 of the Rent Act, the addressee tenant who refused to take delivery of the registered letter addressed to him can be posted with knowledge that the landlord has given a notice to pay up the arrears of rent.

9. The case papers are ordered to be returned for final disposal of the revision application in accordance with law. There shall be no order as to costs of this reference.

10. Case remanded.

That on the basis of a mere endorsem


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