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Allahbad High Court
S.D.KHARE,R.B.MISRA,H.N.SETH
Ganga Ram - Appellant
Versus
Phulwati - Respondent
Decided On : 03/04/1970
EVIDENCE ACT - SECTION 114 - GENERAL CLAUSES ACT - SECTION 27 - TRANSFER OF PROPERTY ACT - SECTION 106 - U. P. (TEMPORARY) CONTROL OF RENT AND EVICTION ACT - SECTION 3 - SERVICE OF NOTICE - PRESUMPTION - REFUSED REGISTERED POST - SERVICE OF NOTICE UNDER SECTION 106 OF THE TRANSFER OF PROPERTY ACT AND SECTION 3 OF THE U. P. (TEMPORARY) CONTROL OF RENT AND EVICTION ACT - INTERPRETATION.
Fact of the Case:
In a suit for ejectment, the landlord sent a combined notice of demand of rent under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (3 of 1947) and Section 106 of the Transfer of Property Act (as amended by Act 20 of 1929) to the tenant by registered post. The notice was received back by the landlord undelivered with an endorsement made by someone in the post office that the addressee had refused to take the notice on a particular day. The tenant denied receiving the notice and the landlord did not lead any evidence to show that the endorsement had been made by the postman concerned.
Finding of the Court:
The court held that a presumption of service of the notice could be made under Section 114 of the Indian Evidence Act and Section 27 of the General Clauses Act. The court found that the endorsement on the notice "Refused" strengthened the presumption that an attempt was made to deliver the notice to the addressee. The court also held that a combined notice under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act and Section 106 of the Transfer of Property Act is permissible under law and that a presumption under Section 27 of the General Clauses Act has to be made in respect of a notice under Section 106 of the Transfer of Property Act. The court further held that the demand of rent under Section 3 of the U.P. Act III of 1947, having been made in the notice under Section 106 of the Transfer of Property Act, must, therefore, be taken to have been served on the tenant when the notice under Section 106 of the Transfer of Property Act was legally served.
Issues: 1. Whether a notice under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, even if combined with a notice under Section 106 of the Transfer of property Act, has to be served on the tenant personally? 2. Whether it is incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the defendant denies service on him? 3. Whether in the circumstances of the present case the Courts below were right in raising the presumption under S. 114 of the Evidence Act in favour of the landlord?
Ratio Decidendi: 1. The court held that a notice under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, even if combined with a notice under Section 106 of the Transfer of property Act, does not have to be served on the tenant personally. The court reasoned that the expression "service upon him of a notice of demand" used in clause (a) of sub-s. (1) of S. 3 should include the service of notice deemed to have been made on a tenant under the provisions of S. 27 of the General Clauses Act, or presumed to have been made on him under S. 114 of the Indian Evidence Act. 2. The court held that it is not incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the defendant denies service on him. The court reasoned that the endorsement on the notice "Refused" strengthens the presumption that an attempt was made to deliver the notice to the addressee. 3. The court held that in the circumstances of the present case, the Courts below were right in raising the presumption under S. 114 of the Evidence Act in favour of the landlord.
Final Decision: The court answered the questions referred to the Full Bench as follows: 1. The answer is in the negative. Even a notice of demand deemed or Presumed to have been served on a tenant will be "service upon him of notice of demand". 2. The answer is in the negative. 3. The answer is in the affirmative. The presumption regarding service of such notice has also to be made under S. 27, General Clauses Act.
S. D. KHARE, J. :- In this second appeal the main point for consideration is-
What presumptions may be drawn when it is found that a combined notice of demand of rent under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (3 of 1947) and Section 106 of the Transfer of Property Act (as amended by Act 20 of 1929) was sent by registered post by the landlord to the correct address of the tenant, but was received back by the landlord undelivered with an endorsement made by some one in the post office that the addressee had refused to take the notice on a particular day.
2. The plaintiff had not led any evidence to show that the endorsement had been made by the postman concerned. In second appeal filed by the tenant the contention is that in the absence of such evidence having been led on behalf of the plaintiff no presumption of service could be made under Section 114 of the Indian Eviction Act.
3. The appeal came up for hearing first before a learned single Judge, who formulated three points (mentioned hereinafter) for the consideration of a larger Bench. The Division Bench before which this appeal was listed noticed that there was some conflict of opinion in two decisions given by the two Division Benches of this Court during the last two years. In the case of Budhu v. Smt. Kamla Narain, 1968 All LJ 707 it was held by a Division Bench of this Court that a presumption about the service of such notice could be raised under Section 114 of the Indian Evidence Act, and, when so raised, will be a presumption of fact. On the other hand it was held in the case of Dwarka Singh v. Ratan Singh Ahuja, 1969 All WR (HC) 477 : 1969 All LJ 849 that in a case like this a presumption with regard to service of notice will have to be raised under Section 27 of the General Clauses Act, and that will be a presumption of law. The following three points, originally formulated by the learned single Judge, have, therefore, come up for consideration before this Full Bench :-
(1) Whether a notice under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, even if combined with a notice under Section 106 of the Transfer of Property Act, has to be served on the tenant personally?
(2) Whether it is incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the defendant denies service on him?
(3) Whether in the circumstances of the present case the Courts below were right in raising the presumption under S. 114 of the Evidence Act in favour of the landlord?
4. Whenever a notice for ejectment under Section 106 of the Transfer of Property Act is attempted to be served on a tenant by means of a registered post, giving the correct address of the tenant, but is received back with an endorsement "not met" or "refused" the question arises as to what presumptions can safely be drawn regarding the service of notice where the actual proof of service is wanting.
5. It is contended by the learned counsel for the appellant that inasmuch as the registered letter has been received back by the sender, it is obvious that it did not reach the hands of the addressee and, therefore, no presumption whatsoever should be drawn regarding the service of the notice on him.
6. The relevant provisions of the Post Office Act (hereinafter referred to as the Act) and the rules framed thereunder will be helpful.
7. Section 3 (c) of the Act provides that 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 articles to the addressee, shall be deemed to be "delivery" to the addressee. Section 14 (a) of the Act lays down that in every proceeding under the Act in respect of a postal article, the production of the postal article, having thereon the official mark of the Post Office denoting t
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