Back
1994 Supreme(HP) 121
High Court Of Himachal Pradesh
KAMLESH SHARMA
SATISH KUMAR - Appellant
Versus
RAM PIARI - Respondent
R.S.A. No. 322 of 1993
Decided On : 07/22/1994
For the appellant(s) :Sh. Bhupender Gupta, Advocate. For the respondent(s):Sh. Shrawan Dogra, Advocate.
Headnote:GENERAL CLAUSES ACT - Section 27 - Indian Evidence Act, 1872, Section 114 - Presumption as to service - Notice was sent on the correct address to addressee by pre-paying and posting It by registered post, also that it was not received back - Presumption did arise, that notice was duly served on the addressee and that he did receive it - Court finds that certificate of postal authorities does not bear Signatures of addressee and words written thereon "Sd/- Name and address" - Addressee was eight In stating in his cross-examination that it was not signed by him - In ordinary course, he was not supposed to sign certificate issued by postal authorities in respect of delivery of registered letter - It is also correct that certificate of postal authorities has not been proved in accordance with law but even if it is not taken into account - The presumption, that notice was served upon and received by addressee was complete.
GENERAL CLAUSES ACT - Section 27 - Indian Evidence Act, 1872, Section 114 - Presumption as to service - Notice in writing signed on behalf of owner landlord and sent by registered post - Postal receipt and statement of tenant as to proper addressing, pre-paying and posting of letter containing notice by registered post stood proved - Hence, Both Courts below were right In deriving presumption by applying provisions of Section 27 of General Clauses Act and Section 114(f) Evidence Act that in the common course of business - Notice was deemed to have been delivered to addressee at the time at which letter would be delivered in the ordinary course of post. Har Charan Singh v. Shiv Rani, AIR 1981 SC 1284 Relied on.
GENERAL CLAUSES ACT - Section 27 - Indian Evidence Act, 1872, Section 114 - Presumption as to service - Rebuttal - Whether presumption stood rebutted by mere denial of addressee tenant in his statement in Court that he did not receive it - Held, No - Once he accepted that address given on notice was his correct address, presumption could be rebutted had addressee brought some evidence on record that he was not available on the address given in notice during the relevant period in which letter would have been delivered to him in normal course of post or that it was delivered to some other person or any such circumstances which would have shown that the usual course of post was interrupted and it was not possible to effect the service of notice - In absence of such evidence, presumption of service of notice upon addressee-tenant was not rebutted.
The legal document provided primarily pertains to property law, specifically landlord and tenant issues, and discusses the legal principles related to the service of notices, presumption of service, and the evidence required to rebut such presumption. It emphasizes that when a notice is sent by registered post to the correct address, and it is not returned, a presumption arises that the notice was duly served and received by the addressee, unless the addressee can provide evidence to rebut this presumption (!) (!) .
Regarding the specific query about the Negotiable Instruments Act, particularly Section 138, the document does not directly address or discuss this section or its provisions. Section 138 of the Negotiable Instruments Act relates to the dishonor of cheques and the legal consequences thereof, including the procedure for legal notices and the burden of proof regarding the issuance and receipt of such notices.
Therefore, based on the provided legal document, there is no discussion or judgment related to Section 138 of the Negotiable Instruments Act or the specific legal procedures and implications associated with dishonor of cheques under that section.
Miss Kamlesh Sharma, J.-This appeal is directed against the decree and judgment dated 5-6-1993 of Additional District Judge (I), Shimla, whereby the appeal of appellant-defendant Satish Kumar was dismissed and the decree and judgment dated 24-8-1990 of Sub-Judge 1st Class (2), Shimla, was affirmed. The Sub-Judge 1st Class had decreed the suit of the respondents-plaintiffs Ram Piari and four others, for possession of the premises consisting of four rooms, laterine and bath room in Prithvi Chand building standing on Khasra No. 343, Khata/Khatauni No 3/3 situated at Kasumpti Bazar, Shimla, fully detailed and described in Para 1 of the plaint (hereinafter called the premises in dispute).
2. Admittedly, the premises in dispute have been in possession of Satish Kumar as a tenant under Prithvi Chand owner landlord, the predecessor-in-interest of respondents-defendants. The suit was instituted by Prithvi Chand but during its pendency in the trial Court, he died and the respondents-plaintiffs were brought on record. Before instituting the suit, Prithvi Chand had sent notice dated 30-6-1987 under section 106 of the Transfer of Property Act to Satish Kumar by registered post terminating his tenancy and requiring him to handover the vacant possession on 31-7-1987.
3. Satish Kumar in his written statement took the stand that, "......The tenancy has not been terminated, No notice as alleged was received by the defendant. As the tenancy has not been terminated, the suit is not maintainable. In any case, the alleged notice is illegal". Further, in his statement made in the Court, Satish Kumar had simply denied the receipt of notice Ex P-l, though he had admitted that the address given therein was his correct address. On the other hand, Suresh Kumar (PW 1), one of the respondents-plaintiffs, placed on record copy of notice Ex P-l as well as postal receipt Ex. P-2 whereby it was sent to Satish Kumar by registered post. He has also produced postal certificate Ex P-3 wherein the postal authorities have stated that registered letter No. 8001 dated 30-6-1987 was delivered on 9-7-1987 to Satish Kumar at his address given therein. On this evidence, both the Courts have come to the conclusion that notice Ex. P-l is presumed to have been duly served upon Satish Kumar as provided under section 114 of the Indian Evidence Act read with section 27 of the General Clauses Act
4. Challenging the findings of both the Courts below, Sh. Bhupender Gupta, learned Counsel appearing for Satish Kumar, has pointed out that the certificate of the postal authorities, Ex P-3, production of which was objected to, could not be relied upon by the Courts below as it was not proved by either producing the record of the postal authorities or the official who issued it. Sh. Gupta further submits that in view of the denial of Satish Kumar that he did not receive the notice Ex. P-l and the certificate of postal authorities Ex. P-3 does not bear his signatures, no presumption arose under section 114 of the Indian Evidence Act read with section 27 of the General Clauses Act that the notice Ex. P-1 was delivered to Satish Kumar.
5. This Court does not find any substance in the submission made by Sh. Gupta. Section 106 of the Transfer of Property Act provides that in the absence of a contract or local law or usage to the contrary, a lease of immovable property not for agricultural or manufacturing purposes is terminable on fifteen days notice expiring with the end of month of tenancy and every such notice must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to one of his family or servants at the residence or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
6. Section 27 of the General Clauses Act provides that where any act authorises or requires any document to be served by post whether the e
