SHYAM NARAYAN SAH Vs. RAGHUNATH PRASAD

JUDGEMENT

(1.) This second appeal is by the plaintiff-landlord from a decree dated May 22, 1976, passed by the Additional Subordinate Judge III, Patna. The suit was for eviction and for arrears of rent. The defendant-respondent had taken Gola shop on rent for carrying on grain business on a monthly rental of Rs. 71/-He was a habitual defaulter in payment of rent. He never paid rent in time. He wilfully defaulted in payment of rent from July 1969 up-to-date. The plaintiff further alleged that he needed the Gola shop for his own use, but that plea of personal necessity has been rejected by both the courts below. However, the Munsif decreed the suit on 30th September. 1975, on the ground of default in payment of rent. On appeal by the defendant, the Addl. Subordinate Judge allowed the appeal and dismissed the suit. The present appeal is against this decision.

(2.) The only point in this appeal is whether the provisions of Section 106 of the Transfer of Property Act were complied with. The relevant facts for determining this point are these: A notice dated 4th October, 1969, was sent by post by the plaintiff-landlord to the defendant terminating his tenancy and calling upon him to vacate the house by the end of October, 1969. This notice could not be served and was returned un-served with a remark that the defendant was out of Patna, on 16-10-1969. Notice was again taken out on 30th October, 1969, terminating the tenancy on the expiry of the 30th November, 1969 and calling upon the tenant to quit the house, but this second notice also could not be served and it came back with the peon's endorsement "refused, 18/11." Then recourse was taken by the landlord to give notice to the tenant by adopting the method of phonogram. The lawyer for the landlord conveyed the contents of the notice through that method on November, 12 1969 terminating the tenancy on the expiry of 30th November, 1969 and calling upon the defendant-tenant to vacate the premises by that time. Thereafter, the present ejectment suit was instituted.

(3.) It is contended on behalf of the landlord appellant that in the present case it should be held that there was proper and sufficient service of notice under Section 106 of the Transfer of Property Act in view of the provisions of Section 27, General Clauses Act, Section 16 Illustration (b) of the Evidence Act and Illustration (f) of Section 114 of the same Act. The main section, however, is Section 27 of the General Clauses Act. That section runs as under: "Where any (Central Act) or Regulation made after the commencement of this Act authorises 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 delivered in the ordinary course of post." I think, it will be useful to read the other two sections of the Evidence Act as well to which I have referred above. Illustration (b) of Section 16 of the Evidence Act reads thus: "The question is whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Dead letter Office, are relevant." Illustration (f) of Section 114 of the Evidence Act runs as follows: "The Court may presume that the common course of business has been followed in particular course." Now under Section 27, General Clauses Act, 1897 the service of the notice to quit 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 delivered in the ordinary course of post. As observed in Sushil Kumar Chakravarty v. Ganesh Chandra Mitra, AIR 1958 Cal 251 = (62 Cal WN 193) this "deeming" has been held to amount to a presumption which unless rebutted would prove the fact of service Even if, therefore, the actual refusal by the addressee is not proved, service of notice may well be held to be proved. In the present case, however, the actual fact of refusal by the addressee is shown by the endorsement appearing on the envelope. The endorsement is "refused, 18/11." The peon was also examined in this case. Under the circumstances, it will not be right to hold that the service of notice was on an earlier date than on 18-11-1969. The aid of that section, in my opinion, in the matter of service of notice at the proper time in the ordinary course of post should be taken when the letter containing the document is returned unserved and other things are not known. As already said there is the evidence of endorsement made by the peon in the present case. Even in absence of the postal peon's evidence a court can hold on the basis of the endorsement that the service has been refused. Under Illustration (f) of Section 114 of the Evidence Act the presumption of fact is that the common course of business has been followed in the particular case and the court is entitled to hold that the postal peon did go to the addressee and the return of the envelope was due to the reason that the addressee refused it. Under the circumstances the court is entitled to hold unless the contrary is proved, that the endorsement "refused" was made by the peon himself and that it was correctly made. In the case of Sushil Kumar Chakravarty (Supra) it was further pointed out that apart from this, the presumption mentioned in Illustration (e) of Section 114 of the Evidence Act is also of great assistance. All that happens in the post office from the time of posting of a letter to the point of delivery to the addressee or return to the sender are official acts. As the law entitles the court to presume that official acts have been regularly performed, the court is entitled to hold that the endorsement was made by the peon and it was correctly made. These two different presumptions, one as mentioned in Illustration (f) and the other mentioned in Illustration (e) of Section 114 of the Evidence Act can be raised with regard to the endorsement made by the peon. The most authoritative decision about the above presumption, namely, the fact of presentation to the proper addressee and the making of true endorsement is the decision of Rankin, C. J. and Pearson, J. In the case of Hari Pada Dutta v. Jai Gopal Mukherjee, (1935) 39 Cal WN 934. Where it was held that if a registered letter came back with an endorsement of refusal, that, in itself, until explained, was prima facie sufficient evidence that the addressee had an opportunity to accept it. There is also a very-old decision in the case of Loolf Ali Meah v. Pearee Mohan Roy, (1871) 16 Suth WR 223, where the same principle was laid down and it was held that where there was evidence that a letter had been forwarded to the addressee by post duly registered, it was to be presumed that it had been tendered to him and that the addressee could not take advantage of his own refusal to take it. In Sarkar Estate (Pvt.) Ltd. v. Kusumika Iron Works (Pvt.) Ltd., (AIR 1961 Cal 439) it was held that a tender by a registered letter which is refused by the addressee is as good a delivery as a letter which is accepted and the refusal precludes the addressee from pleading ignorance of its contents. In Ganga Ram v. Phulwari, AIR 1970 All 446 (FB) also, the notice had been received back by the landlord undelivered with an endorsement made by some one in the post office that the addressee had refused to take notice on a particular day, In that case no evidence had been led by the plaintiff to show that the endorsement had been made by the postman concerned. It was held that even in the absence of such evidence a presumption of due service could be made under Section 114 of the Evidence Act and the postman need not be examined to prove the endorsement. In the case of Balbhadra Mal v. Commr. of Income-tax (AIR 1957 Punj 284} the view taken was that where a notice under Section 106 of the Transfer of Property Act was received back by the sender with an endorsement "refused" the presumption of service can be drawn both under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act, There are also several other cases where the letter came back with an endorsement by the postal peon that the addressee had refused to take delivery and in which it was held that there was a valid service. All these cases go to show that notice sent by registered post but refused by the addressee is a valid service on the person who refused to accept the delivery of the registered letter. Having regard to the principles laid down in the aforesaid cases it must be held that the court of appeal below was right in holding that the registered notice to quit dated 30th October, 1969 was served upon the defendant on 18-11-1969.