- (1.) SUDHIR Narain, J. The petitioner seeks writ of certiorari quashing the judg ment and decree dated 31-1-1994 passed by the Judge Small Causes Court, respondent No. 2, and the order dated 21-1-97 passed by respondent No. 1 dismissing the revision against the aforesaid order.
(2.) THE facts, in brief, are that respon dent No. 3 filed Suit No. 5 of 1992 against the petitioner for recovery of arrears of rent, ejectment and damages on the allegation that the petitioner was a tenant at a monthly rent of Rs. 150/ -. He failed to pay rent since 1-1-1984. A notice dated 6-9-1991 was given to the petitioner demanding arrears of rent since 1-1-1984 and terminating his tenancy. THE petitioner filed written statement in the suit. It was alleged by him that the rate of rent was Rs. 55 per month and not Rs. 150/- per month. He denied that the rent was due since 1-1-1984. He had sent Money Order dated 10th September, 1986 to the plaintiffs. He further denied that any notice sent by the respondents on 6th September, 1991 was received by him. THE trial court recorded a finding that the notice was received by the petitioner. THE rate of rent was Rs. 150/-per month and it was due since 1st January, 1984. THE suit was decreed on 31-1-1994. THE petitioner preferred revision against the said order and respon dent No. 1 dismissed the revision on 21-1-1997 by the impugned order. Sri Siddheshwari Prasad, Senior Ad vocate, urged that the findings of the courts below on the question of service of notice are perverse. The notice was alleged to have been served on the basis that acknow ledgment due purports to bear signature of the petitioner but in fact it did not bear his signature and that was denied by him. It is contended that once that petitioner denied him. It is contended that once the petitioner denied his signature on the acknow ledgment due card, the burden of proof is upon the plaintiff-landlord to prove that in fact the signature is that of the addressee. He should have summoned either the postman concerned or to have led the evidence of handwriting expert. If a notice is given by the landlord under Section 106 of the Transfer of Proper ty Act, there is a presumption of service of notice under Section 27 of General Clauses Act which provides that the service shall be deemed to have been effected by properly addressing, prepaying and posting by registered post, a letter containing docu ment, 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. If a letter has been posted at the correct address, it will be deemed to have been served. The presumption relates not only regarding the posting and service of the notice but also of the signature of the recipient on the acknowledgment due form. The landlord is not bound to produce the postman to prove the service of the notice. In Full Bench decision of this Court in Ganga Ram v. Smt. Phulwati, AIR 1970 Al lahabad 446, it has been held that there is a presumption of official acts under Section 114 (e) and (f) of the Evidence Act. The sender is not under the obligation to produce the postman regarding service of notice, even if there is endorsement of refusal by the postman.
(3.) RULE 62 and 63 of the Indian Post Office RULEs read with Section 114 of the Evidence Act also raises that presumption. RULE 63 refers to obtaining the signature of the addressee. They read as under- "62. A receipt shall be given to the person who presents an article for registration at the post office window during the hours prescribed for posting registered articles. 63. No registered article shall be delivered to the addressee unless and until he or his agent has signed a receipt for it in such form as the Director-General shall prescribe. " The registered letter is given con taining the acknowledgment due. The postman is supposed to obtain signature of the addressee or his agent under Rule 63. If a tenant is addressee it is for him to establish that it did not contain his signature. The mere denial of an addressee is also not suffi cient to rebut the presumption. It is a matter of assessment of evidence. In case his state ment is believed by the court, the burden of proof will then shift on the landlord. The question of the presumption of the signa ture of an addressee was considered by the Supreme Court in MIS Green View Radio Service v. Laxmibai Ramji and another, AIR 1990 SC 2156, wherein it was held as under: "thus in our view the presumption of ser vice of a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that he never received such letter. If the acknowledgment due receipt contains the sig natures of the addressee himself and the addres see as a witness states that he never received such letter and the acknowledgment due does not bear his signature and such statement of the addressee is believed then it would be sufficient rebuttal of the presumption drawn against him. The burned would then shift on the plaintiff who wants to rely on such presumption to satisfy the court by lead ing oral or documentary evidence to prove the service of such letter on the addressee. This rebut tal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement. The court in the facts and circumstances of a case may not consider such denial by the defendant as truthful and in that case sueh denial alone would not be sufficient. But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by registered post. ";