A.P.Misra - (1.) -Heard learned counsel for the parties. The present revision is being disposed of at the stage of admission after exchange of counter and rejoinder affidavits.
(2.) THE only contention raised on behalf of the applicant is that the finding recorded by the trial court that the service through avoidance on the basis of such endorsement made by the post-man is proper service, is liable to be set aside as it could not be made deemed service as there was no refusal. THE trial court in the present case recorded a finding that originally notice was sent through registered post in which there is endorsement dated 15th September, 1971 of the post-man that the defendant is avoiding service hence registered notice is being sent back. THE defendant in the present case has stated that the post-man wanted to deliver the notice to him in Nagar Palika where he was serving but he was not there. However, it is denied that he was avoiding service. It has been argued on behalf of the applicant that even when the endorsement of the post-man about the refusal of the notice by the addressee was made and where addressee denies such refusal it is accepted only by the production of the post-man who has made such endorsement. Admittedly, in the present case he has not been produced. Therefore, the trial court should not have relied on such report of the post-man. In the alternative it is argued that in fact, even on the admitted position there is no refusal by the defendant. What has been endorsed by the post-man is the avoidance of service. The question whether the post-man should have been produced or not is always a question which depends on the facts of each case. However, I find in the present case that the post-man has not made any such endorsement that the respondent has refused service. In the matter of refusal inherently it should be clear that such man was present but had not taken notice. It is in such cases the court comes to the conclusion that such refusal amounts to service. The question would not be the same in the case where the endorsement is of avoidance of service of the person concerned. There is no such endorsement that the addressee was present and he avoided to receive the same. However, the service was not effected on the applicant on account of one reason or the other and the endorsement of avoidance of service is only an inference of the post-man. It would! be dangerous for the court to draw inference of service on these facts.
(3.) BEFORE coming to the conclusion that on the given fact there is deemed service, the court has to fully satisfy that such a person who was actually present, deliberately refused such service. In the present case there is neither endorsement of the post-man for refusal of service nor an endorsement that the applicant-respondent was present and he had avoided deliberately to receive the said notice and in such case the finding recorded by the trial court that this would amount to service on respondent, cannot be sustained. Since in the present case no notice was served in the present proceeding, the finding recorded by the trial court cannot be sustained. Since in the present case notice under section 106 of the Transfer of Property Act was not served, the suit itself was incompetent and thus the impugned order cannot be sustained. In the result, the present revision is allowed with costs and the impugned order dated 26th November, 1987 is set aside. Revision allowed.;