K.C.Das Gupta, J. - (1.) This appeal under Clause 15 of the Letters Patent against the decision of Renupada Mukherjee J., dismissing a second" appeal to this Court against a decree for ejectment raises the question whether when the letter containing a notice to quit has been proved to have been properly addressed, prepaid and posted by registered post and the original cover containing the notice which is Put in evidence is found to have the word, "refused", written on it, the Court is entitled to hold, without the postal peon being examined to prove the fact of refusal by the addressee, that Proper service has been effected. All the Courts below have held that proper service was effected. It appears that in the trial Court and in the court of first appeal certain other endorsements appearing on the covers were taken into consideration. Renupada Mukherjee J. held that those other endorsements should not have been admitted in evidence or looked into by the Courts below without the authors thereof being examined in Court. He held, however, that the Court was entitled to take into consideration the endorsement "refused" as appearing on the covers without the postal peon being examined and that thereupon it was entitled to presume without the peon being examined that proper service has been effected.
(2.) The argument, that unless the postal peon is examined such an endorsement "refused" is of no use and cannot justify the presumption that it was actually tendered and refused is based on the decision of this Court in the case of Gobinda Chandra v. Dwarka Nath, 19 Cal WN 489: (AIR 1915 Cal 313) (A). Their Lordships pointed out that the endorsement was at best a record of a statement by the peon and could not be treated as evidence of the events recited therein unless the peon was examined except where there was evidence of circumstances which would allow the statement to be put in evidence under Section 32 (2) of the Indian Evidence Act. Their Lordships observed further: "Proof of the fact that a letter correctly addressed has been posted and has not been received back through the Dead Letter Office may justify the presumption that it had been delivered in due course of mail to the addressee, but proof of the fact that a letter has been duly posted and has been returned by the postal authorities does not justify the presumption that it has been so returned because it has been refused by the addressee; for it may well be that it has been returned because the addressee has not been found; much less is there a presumption that the cover has been tendered Co the addressee on a particular date." It has to be observed that a view opposite to what found favour with Mookerjee and Walmsley JJ. in 19 Cal WN 489: (AIR 1915 Cal 313) (A), was taken in a large number of cases. There is also, as noticed by Renupada Mukherjee J., a full discussion of the question in Nirmalabala Devi v. Provat Kumar Basu, 52 Cal WN 659 (B), where Chakravartti J.. (now Chakravartti C. J.) held that the preponderance of authority was in favour of the view that even without a peon being examined in support of an endorsement of refusal appearing on the cover, a Court was justified in holding that proper service has been affected.
(3.) Before entering on a discussion of the question whether in the absence of the postal peon's evidence, a Court can hold that service has been refused, it is worth pointing out that in this particular case, the notice had been sent by registered post. The question at once arises as to what presumption can and should be made under Section 27 of the Indian General Clauses Act. That section is in these words : "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, prepaying 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." Under this section, the service of the notice to quit, which is required by the Transfer of Property Act, shall be deemed to be effected by properly addressing, prepaying and posting by registered post a letter containing the notice to quit. As soon, therefore, it is Proved that the letter containing the notice to quit was properly addressed, prepaid and posted by registered post, service shall be deemed to be effected. 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 the notice may well be held to be proved.;