TaxTMI 
TaxTMI 
2022 (8) TMI 1627
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....366;फत करने पर घर वालों ने बताया कि प्राप्तकर्ता अपने निजी कार्य से बाहर गये हैं आने का कोई निश्चित समय नहीं है।" He next submitted that as per letter dated 8.6.2015, same has been returned to addressee i.e. Jai Prakash Yadav on 10.04.2015. Therefore, under such facts of the case, once the notice has not been served and on the very next date i.e. 7.4.2015, it was returned back with the endorsement of postman and further, notice has been sent back to addressee on 10.04.2015, it shall not be treated to be sufficient. It is settled position of law that without service of notice under Section 106 of Act, 1882, no SCC Suit can be maintained. In support of his contention, he has pl....
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.... of law, in light of which controversy has to be decided, therefore, the same is quoted below; Section 114 of Act, 1872 "Section 114 - Court may presume existence of certain facts. 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 The Court may presume- (f) That the common course of business has been followed in particular cases; Section 27 of Act, 1897 "27. Meaning of service by post.- 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, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be de....
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....r, the finding that the appellant refused to receive the notice is wholly unwarranted on the evidence on the record. In my opinion, as there was no service of notice under Section 106 of the Transfer of Property Act on the appellant, there was no termination of his tenancy and the suit for ejectment could not possibly be decreed." 8. He further placed reliance upon the judgment of Shiv Narayan Goswami (supra) and submitted that after considering so many judgments of Apex Court, Court has taken same view. Relevant paragraphs are quoted below; "The service of notice sent by registered post can be presumed to have been served upon the addressee when it is not returned undelivered or returned with postal endorsement of 'refusal' etc., but where the registered letter is received back with endorsement like "addressee is not available at the address" or "not met" or "out of station" etc., which shows that there was no occasion for postal authority to offer the letter to the addressee and there was no act on the part of addressee having the effect of denying receipt of such letter, such presumption of service in respect of registered letter cannot arise. Sectio....
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....gainst him." 9. He also placed reliance upon the judgment of this Court in the matter of Satish Chandra @ Satish Pandit (supra) and submitted that in that case too, Court has taken the similar view. Relevant paragraphs are quoted below; "The basic question which arises for consideration is the validity of the notice determining tenancy and its services in the absence of which the suit could not have decreed. The tenancy of the defendant revisionist is said to have been determined vide notice dated 02.01.2009 which was brought on record. The trial court while deciding the issues No. 3 and 4 regarding the validity of the notice and if the defendant revisionist is liable to be evicted on its basis has recorded a finding that since the notice dated 02.01.2009 (Paper No. 7Ga) has been filed in evidence it clearly shows that the tenancy of the defendant revisionist has been determined. In the later part of the finding, the court below poses a question as to whether the notice was served upon the defendant revisionist but solely on the reasoning that the copy of the notice is on record held that the tenancy has been determined without recording any specific f....
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....ll not be proof but the conduct of the party denying the service does not appear to be such, rather circumstances are available to considerate be Moti Lal. (sic) A postcard was addressed to the mother much earlier and that evidence could not have been created later as an after-thought. This would mean that Mooran was planned as alleged and even defendant No. 1 the mother was summoned to accompany. There is another circumstance, namely, the leave taken by Moti Lal for 7-8-70, 8th being Saturday. I am really surprised how the lack of any permission to leave the station would be relevant. In fact he was out of station all right. The plaintiffs case is that he was in Varanasi proper. The defendant's case is that Moti Lal had gone to Mirzapur. I for one cannot apply two standards. If lack of permission is vague it is also vague against the case alleging that defendant No. 2 was at Varanasi so the question of permission has become irrelevant. The first appellate Court has fallen in error by misreading the evidence of the plaintiff and this Court can therefore well interfere with the findings of the first appellate Court. Moti Lal's evidence rebutted the presumption of service of ....
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.... this matter after four months." 12. Learned counsel for opposite party submitted that judgments so relied by learned counsel for the revisionist have not considered the consistent pronouncements made by this Court as well as Apex Court where the Court has taken specific view that once notice has been sent on correct address in light of Section 114 of Act, 1872 as well as Section 27 of Act, 1897 shall be treated sufficient. 13. First, he placed reliance upon judgment of Full Bench of this Court in the matter of Ganga Ram (supra). Relevant paragraph of said judgment is quoted below; "The fact that the notice was returned back to the sender with an endorsement "Refused" does not in our opinion, dislodge the presumption that the registered notice had reached the addressee. On the other hand, it strengthens the presumption that the notice had reached the addressee. It could not be delivered to him because he refused to accept it. In view of what we have stated above, we proceed to answer as follows the three questions referred to the Full Bench:-- Question Our Reply 1. Whether a notice under S. 3 of the U.P. (Temporary) Control of Rent and Eviction Act,....
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....at he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under Order V of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served ....
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....utory significance can at all be attached to the service by affixture claimed to have been effected by the landlord. The statute prescribes only one method of service for the notice and none other. If, as we have held, the despatch of the notice by registered post was sufficient compliance with this requirement, the landlord has fulfilled it. But, if that is not so, it is no compliance with the statute for the landlord to say that he has served the notice by some other method. To require any such service to be effected over and above the postal service would be to travel outside the statute. Where the statute does not specify any such additional or alternative mode of service, there can be no warrant for importing into the statute a method of service on the lines of the provisions of the C.P.C. We would therefore not like to hold that a "substituted" service, such as the one effected by the landlord in the present case, is a necessary or permissible requirement of the statute. It may be even an impracticable, if not impossible, requirement to expect some such service to be effected in cases where the landlord lives outside the town, or the State in which the premises are situated. ....
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....rom the suit premises during the period when the notice was tendered or had left the same. Therefore, we do not find any perversity in the concurrent finding of the Courts below that the service was good. Therefore, we are not inclined to interfere with the finding with regard to the validity of the service of notice on the basis of the endorsement "not claimed" by the postal authority." 16. He also placed reliance upon the judgment of this Court in the matter of Sharda Prasad @ Chhulli (supra) in which Court has considered the very same issue and taken same view about service of notice. Relevant paragraphs are quoted below; "The postman initiated and put the date as 23.3.78. In the instant case, both the Courts below after close scrutiny of the evidence on record found that there was presumption of service of notice on the tenant. Section 114 Clause (f) of the Evidence Act provides that the Court may presume that the common course of business has been followed. It was held by a Full Bench of this Court Ganga Ram's case (supra) that it is not incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing th....
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....n requiring consideration is in regard to the implication of Section 114 of the Indian Evidence Act, 1872 insofar as the service of notice under the said proviso is concerned. Section 114 of the Indian Evidence Act, 1872 reads as follows: Section 114 - Court may presume existence of certain facts - 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 The Court may presume -------- (f) That the common course of business has been followed in particular cases. ...." According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have....
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....te of M.P. v. Hiralal and Ors. : (1996) 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu and Anr. : (2004) 8 SCC 774. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice un-served." 18. He also placed reliance upon the judgment of this Court in the matter of Ghulam Waris Khan (supra). Relevant paragraphs are quoted below; "Section 27 of the General Clauses Act also deals with the meaning of word 'service' by post and according to the same the service shall be deemed to be effected if the letter is properly addressed and the same is sent by registered post after the postal charges have already been paid unless contrary is proved to have been effected at the time if letter would have been delivered in ordinary course. Hon'ble Supreme Court in M/s. Madan and Company v. Wazir Jaivir Chand : 1989 (2) ARC page 381, cited on behalf of revisionists has observed that if a registered letter addressed to a person at his reside....
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....interference by this Court." 20. He next placed reliance upon the judgment of this Court in the matter of Smt. Vandana Gulati (supra). Relevant paragraphs are quoted below; "A Division Bench of this Court in Ram Nath and others v. Angan, 1984 (2) ARC 290, held that where a registered envelope with correct address of the tenant is posted and the tenant refuses to take notice or it is returned with the endorsement "not met" the notice shall be deemed to have been properly served upon him and the landlord is not required to examine the postman. The above view is fulfilled by the observations of the Supreme Court in M/s. Madan and Co. v. Wazir Jaivir Chand, AIR 1989 SC 630, wherein it was remarked that when the postman is unable to deliver the letter/notice on repeated attempts either on account of the addressee 'not found' not in station, addressee is left or not met' the presumption of service arises as it is not possible for a landlord to ensure that the registered letter/notice sent by him is actually received by the tenant. In the light of the above legal position, the argument that the endorsement "not claimed/not met" is not sufficient t....
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....document, and, 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". 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice un-served, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh (1992) 1 SCC 647; State of M.P. Vs. ....
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....ant-revisionist as well as at his Chamber address in Civil Court Compound, Ghaziabad. There is no dispute that the plaintiffs-respondents correctly mentioned the addresses of the defendant-revisionist on the envelopes sent by registered post and under certificate of posting. The postman visited to deliver the registered envelops containing the notice, to the defendant-revisionist at his residential address and also Chamber address on several dates. Under the circumstances and also for the reasons recorded in preceding paragraphs No. 11,13 and 14 and the law laid down by Hon'ble Supreme Court as discussed in preceding paragraphs No. 12, 14, 15 and 16, I have no hesitation to hold that the facts of the present case fully justify a presumption to be drawn for valid service of notice upon the defendant-revisionist whereby the tenancy of the defendant-revisionist was terminated and arrears of rent were demanded." 24. He further placed reliance upon the judgment of Bombay High Court in the matter of Jain Developers and 3 others (supra). Relevant paragraph is being quoted below; "Section 27 of the Code of Civil Procedure, 1908 deals with summons to be served to the defenda....
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....st Office Act. The requirement of Section has been complied with in this case. The reasoning of the High Court on this issue is not correct and not in accordance with factual position. In the notice issued, the Postman has made the endorsement. This presumption is correct in law. He had given notice and intimation. Nevertheless, the respondent did not receive the notice and it was returned un-served. Therefore, in our view, there is no obligation cast on the appellant to examine the Postman as assumed by the High Court. The presumption under Section 114 of the Evidence Act operates apart from that under the Post Office Act, 1898." 26. From the perusal of Section 27 of Act, 1897, it clearly transpires that service shall be deemed to be affected by properly addressing, pre paying postal charges and posting by registered post, a letter containing the document shall be treated to be sufficient unless the contrary is proved. It shall also be seen in light of Section 114(f) of Act, 1872 which provides that in common course of business has to be followed and in present case, in light of Section 27 of Act, 1897, common course of business is that letter has to be sent alongwith proper ad....
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.... other remark with regard to non service of notice, shall be treated sufficient. This Court again in the matter of Alok Kumar Kaushik (supra) has considered this issue by framing question about service of notice after having discussion of Act, law laid down by Apex Court as well as this Court and has held that in such circumstances whether notice has been sent upon proper address in duly stamped envelope shall be treated sufficient after endorsement of postman with regard to non service of any reason except incorrect address. 29. This dictum of law has also been followed by Bombay High Court in the matter of Jain Developers and 3 others (supra). Not only this, in such cases where the examination of postman is required or not, Apex Court in the matter of P.T. Thomas (supra) has taken a specific view that no such examination of postman is required under such circumstances. 30. In the present case too, facts are undisputed. Letter was sent through registered post on correct address, which was returned back with endorsement of postman "दरियाफत करने पर घर वालों &....