A registered letter is presumed to have been duly served if it is received back with the endorsement of refusal provided it was sent on the correct address and in the name of the correct person.

Headnote:
TRANSFER OF PROPERTY ACT, 1882 - SECTION 106 - NOTICE - SERVICE - PRESUMPTION - BURDEN OF PROOF - ONUS - RES JUDICATA - WRIT JURISDICTION - SCOPE - EVICTION - STAY - CONDITIONS.
Fact of the Case:

The tenant-petitioner challenged the judgment and order passed by the Small Causes Court and the Revisional Court, which allowed the landlord's suit for eviction. The main contention of the petitioner was that the registered notice under Section 106 of the Transfer of Property Act (TPA) with the endorsement of refusal was not sufficient and the presumption of service was not available to the plaintiff as the plaintiff failed to summon the Postman to prove the service on the basis of this endorsement of refusal.
Finding of the Court:

The court held that the onus to prove the service of notice lay upon the plaintiff and the two Courts below after appreciating evidence on record have recorded findings of fact that plaintiff succeeded in proving notice. The court also held that the petitioner's contention that the Postman of Beat No. 14 was not examined was not tenable as the Postman of Beat No. 4, who was responsible for delivering letters of Beat No. 4 within whose area the premises in question was situate, was examined.
Issues: 1. Whether the registered notice under Section 106 of the Transfer of Property Act (TPA) with the endorsement of refusal was sufficient to prove service? 2. Whether the plaintiff had discharged the onus of proving the service of notice? 3. Whether the Postman of Beat No. 14 was required to be examined to prove the service of notice? 4. Whether the plea of res judicata was maintainable? 5. Whether the writ petition was maintainable in view of the concurrent findings of fact recorded by the two Courts below?
Ratio Decidendi: 1. The court held that a registered letter is presumed to have been duly served if it is received back with the endorsement of refusal provided it was sent on the correct address and in the name of the correct person. 2. The court held that the plaintiff had discharged the onus of proving the service of notice by examining the Postman of Beat No. 4, who was responsible for delivering letters of Beat No. 4 within whose area the premises in question was situate. 3. The court held that the Postman of Beat No. 14 was not required to be examined as the Postman of Beat No. 4 had already testified that the letter was redirected from Beat No. 4 to Beat No. 14 on the information tendered by the family members of the tenant that he will be available at the N.I.P. office. 4. The court held that the plea of res judicata was not maintainable as the tenant had failed to raise the said plea before the revisional court. 5. The court held that the writ petition was not maintainable in view of the concurrent findings of fact recorded by the two Courts below.
Final Decision: The writ petition was dismissed. The court directed that the petitioners may not be evicted/dispossessed on the basis of impugned judgments till 31, March, 2000, subject to certain conditions.

JUDGMENT : -

A.K. Yog, J.

Learned counsel for the parties state that all the parties are served. No interim application is pending. Case is ripe and ready for hearing. None of the parties has objection to the hearing of the case.

2. MAN Mohan Tandon and Deepak Tandon (Respondent Nos. 3 and 4) are the owners and landlords of premises bearing Municipal No. 1 (New No. 15), Hastings Road, Nyaya Marg (now renamed Justice C. S. P Singh Marg, Allahabad,-wherein one Nitai Lal Barua was tenant at a monthly rent of Rs. 35 per month, besides tax.

It is not necessary to dilate upon the facts of this petition, as this petition can be decided on a short ground. There has been several innings between the par ties. It has come on record that the landlords filed J. S. C. C. Suit No. 419 of 1975 before Judge, Small Causes Court, Allahabad. True copy of the plaint has been annexed as Annexure 4 to the petition. Nitai Lal Barua, admittedly, died after filing of the suit, but before filing of the written statement his legal representatives were brought on record.

3. PARTIES led evidence. Main thrust of the defendant-tenant was that registered notice under Section 106, Transfer of Properly Act (for short called TPA) with the endorsement of refusal (lone se inkar kiya) was not sufficient and the presumption of service was not available to the plaintiff as the plaintiff failed to summon Postman to prove the sendee on the basis of this endorsement of refusal.

4. THE Judge, Small Causes Court decreed the suit by means of the judgment and order dated 6th December, 1977 and allowed the reliefs claimed in the plaint (Annexure 6.)

Feeling aggrieved, tenant-petitioner filed Revision No. 22 of 1978 before the Court of District Judge under Section 25, Provincial Small Cause Courts Act, which was allowed and the matter was remanded back to the trial court vide judgment and order dated 28th March, 1978.

5. THE Judge Small Causes Court vide judgment and order dated 29th November, 1978 again decided the suit in favour of the plaintiff, allowed the suit partly. THE said judgment was again challenged by filing revision, which too was allowed and suit was decreed by the Revisional Court exercising jurisdiction under Section 25, Provincial Small Cause Courts Act.

6. FEELING aggrieved, tenant-petitioner filed writ petition in this Court, which was allowed and the matter was again remanded back for decision afresh vide judgment and order dated 5th September, 1984 (Annexure-10).

The Judge Small Causes Court in view of the directions contained in the remand order, stated above, vide judgment and order dated 16th January, 1986 allowed the suit and granted relief in favour of the plaintiff-respondent Nos. 3 and 4. The tenant-petitioner being aggrieved again filed SCC Revision Noll5 of 1986 (Annexure 12 to the petition;, which has been dismissed. The Revisional Court has concurred by the findings recorded in its judgment (Annexure-11).

7. PRESENT petition has been filed under Article-226, Constitution of India praying for issuance of writ of certiorari to quash impugned judgment and orders dated 16th January, 1986 and 17th November, 1990 (Annexures 11 and 12) passed by Respondent Nos. 2 and 1 respectively.

8. THE legal grounds for challenging the said orders are contained in Paragraph 22 of the writ petition.

Ground (A) in the petition is based on the surmise that onus to prove the service of notice is upon the plaintiff. It may be mentioned that the petitioner has confused between concept of burden to prove on the one hand and onus on the other hand. Parties have pleaded and led evidence being fully aware of the controversy involved. The onus looses significance. A perusal of the judgment shows that no such argument was raised he-lore the Revisional Court regarding the discharge of onus or the burden. A perusal of the judgment shows that parties had led evidence. The burden to prove service of the notice, undisputedly, lay upon the plaintiff. The two Courts below after apprec

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1999 Supreme(All) 1115

High Court Of Allahabad A.K. Yog, J.Barindra Kumar Barua Vs.Addl Distt Judge Allahabad Decided on: Aug 04, 1999

A registered letter is presumed to have been duly served if it is received back with the endorsement of refusal provided it was sent on the correct address and in the name of the correct person.

High Court Of Allahabad
A.K. Yog, J.
Barindra Kumar Barua
Vs.
Addl Distt Judge Allahabad
Decided on: Aug 04, 1999