BHARGAVA, J. - (1.) THIS is a second appeal by the defendants in a suit for ejectment of a shop situate in Chowkri Top Khana Desh, Khazanewalon ka Rasta, Jaipur City.
(2.) THE suit was filed on grounds of personal necessity of the plaintiff and nonpayment of arrears of rent. THE defendants contested the suit firstly on the ground that the notice determining the tenancy was not served upon them and secondly that the shop was not required reasonably and bona fide by the plaintiff for her own use. As regards the arrears of rent they stated that they fell into arrears as the plaintiff wanted to take the amount in a lump. However in the written statement, they expressed their willingness to pay the amount of arrears and in fact they tendered the amount in court on 7th February, 1953 together with the approximate costs of the suit, the written statement having been filed on 5th February, 1953. The trial court decided all the points against the defendants, On appeal the learned Senior Civil Judge held that the plaintiff has failed to prove her personal necessity for the shop, but she was entitled to a decree for ejectment on the ground of non payment of rent by the defendants for the last 20 months. As for the service of notices he held that from the endorsement of 'refusal' on the notices it should be presumed that they were tendered to the defendants and were refused by them. In this appeal the main contention of the learned counsel for the appellant is that the view of the courts below regarding the service of notices on the defendants is erroneous. It is urged that in a case where the notice has been returned to the sender with an endorsement of refusal on it, no presumption that it was refused by the addressee, can be raised unless there was proof that it was actually tendered to the addressee and refused by him. It is urged that the plaintiff has not examined the postman who is alleged to have tendered the notices to the defendants and in the absence of such evidence presumption under sec. 114 of the Evidence Act cannot be drawn about its service on them. Reliance is placed on Gobinda Chandra Saha Vs. Dwarka Nath Patita (1), Raja Udram Vs. Khanbeg Amirbeg (2), and Sheo Ram Vs. Rameshwarlal (3 ). On the other hand learned counsel for the respondent urges that the courts below were right in presuming that the notices reached the defendants and on their refusal were returned by the postal authorities to the plaintiff. Reliance is placed on Dudali Dayal Vs. Delo Bibi (4), Mohanlal Kojriwal Vs. Sundar Lal Madanlal Saraf (5), Kodali Bapayya Vs. Yadavalli Vankatram (6), and Warnaculsuria Pelesia Tamel Vs. Halambe Aratchiqe Anohrmy (7 ). In the present case posting of the letters containing the notices is sufficiently proved by the statement of Shri Sitaram (P. W. 5 ). It is also admitted by Roop Narain defendant that they were correctly addressed. He has not clearly denied the tendering of the letters but has only stated that when these notices reached their shop he was not there and his Munim might have returned them. It, therefore, appears from the statements of the defendants that the notices did reach their shop. Whether in such circumstances the endorsement of refusal on the back of the letters should be presumed to be correct or not, is the question even though the plaintiff has failed to examine the postman. Under sec. 114 Evidence Act Illustrations (e) and (f) the following presumptions arise: (1) that the judicial and official acts have been regularly performed; (2) that the common course of business has been followed in particular cases. In the common course of business a letter is returned to the sender either when the addressee is not found or when he refuses to accept it. A presumption under sec. 114 is a presumption of fact and can be rebutted by the defendant's denial on oath. The courts are also entitled to hold that the endorsement on the back of the letters is made by the postman and also correctly on the refusal of the addressee because this is an official act and the court can presume that it has been regularly performed. The decisions on the question whether refusal to accept can be presumed on proof of posting and giving back the letter with the endorsement of refusal, are not uniform - see Jankiram Narhari Sahhane Vs. Damodhar Ram Chandra Joshi (8), Tekchand Devidas Vs. Gulabchand Chandanmal (9), taking one view and Saila Bala Dasi vs. Atul Krishan Mondal (10), Balbhadarmal Kuthiala vs. The Commissioner of Income Tax, Punjab, Sapra, Himachal Pradesh, Bilashpur and Simla (11) and Sushil Kumar Chakravarty vs. Gabeshchandra Mitra (12) the other view. The decision in Gobinda Chandra Saha's case (1) which was followed in Raja Udram's case (2) and Sheo Ram's case (3) has been noticed and explained in the later decisions of that court viz. , Dudali vs. Dalobibi (4) and Sushil Kumar Chakravarty vs. Ganesh Chandra Nitra (12 ). Having regard to the illustrations (e) and (f) under sec. 144 Evidence Act when a letter is received back with the endorsement 'refused' a presumption arises that it was refused by the addressee even though the postman has not been examined to prove it. The presumption is not destroyed merely because the letter has been returned to the sender. The endorsement on the letter falls within the ambit of the official acts of the postman and in the usual course of business it will be presumed that it was tendered to the addressee. Whether the presumption has been rebutted will depend on the facts of each case. On a consideration of the defendants' statement and the facts of the case the courts below have held that the presumption was not rebutted. In my opinion on the facts mentioned above the courts below were right in holding that the notices did reach the defendants and they refused to accept them. It was also faintly urged that the defendants tendered the arrears of rent in the court on 7th February 1954 even before the first day of hearing of the suit and therefore, no decree for ejectment should have been passed against them on the ground of non payment of rent. The defendants however, cannot get advantage of this because their case fell under the second proviso as their had made defaults on more than three occasions within a period of 18 months. It was not defendants' case that they had tendered in the court all the amount due along with costs and interest payable under sec. 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act. On the other hand it has been observed by the trial court that the amount deposited was not equal to the amount due under sec. 13 (4 ). Therefore no question about the applicability of sec. 13 (4) arises in this case. This appeal has therefore, no force and is hereby dismissed with costs. .;