1975 (9) TMI 182 - HC - Indian Laws

Summary

Issues Involved:
1. Presumption of service of notice by post.
2. Timeliness of the second appeal.
3. Rebuttal of the presumption of service by tenant's testimony.

Detailed Analysis:

1. Presumption of Service of Notice by Post:
The core issue is whether the presumption of service of notice by post can be raised under Section 114 of the Evidence Act and Section 27 of the General Clauses Act. The landlord argued that the presumption of service should be raised based on the postal cover returned with the endorsement "refused." The tenant denied receiving the notice and claimed it was never tendered to him. The Rent Control Tribunal held that the tenant's bare statement was insufficient to rebut the presumption. However, the High Court clarified that presumptions under Section 114 of the Evidence Act and Section 27 of the General Clauses Act are rebuttable. The tenant's statement on oath that the notice was not tendered to him is sufficient to rebut the presumption, shifting the onus back to the landlord to prove actual tender and refusal.

2. Timeliness of the Second Appeal:
The landlord raised a preliminary objection that the second appeal was barred by time. The tenant filed the appeal within the stipulated period after obtaining certified copies of both the appellate and original orders. The High Court overruled the objection, holding that the appeal was filed within time as per Rule 2(a) of the Rules and Orders of the Punjab High Court, Volume V, Chapter I, Part A-A(q), which mandates that a second appeal must be accompanied by a copy of the original order unless exempted by the appellate court.

3. Rebuttal of the Presumption of Service by Tenant's Testimony:
The High Court emphasized that both the presumption of fact under Section 114 of the Evidence Act and the presumption of law under Section 27 of the General Clauses Act are rebuttable. The tenant's statement on oath denying the receipt and refusal of the postal cover is the best possible evidence he could provide. This shifts the onus back to the landlord to prove actual tender and refusal, potentially by producing the postman. The High Court rejected the extreme proposition that no presumption could arise without evidence of actual tender and refusal. The tenant's statement on oath was deemed sufficient to dislodge the presumption, and the landlord failed to provide additional evidence to prove service.

Conclusion:
The High Court allowed the tenant's appeal, setting aside the Rent Control Tribunal's order and restoring the Addl. Rent Controller's decision to dismiss the eviction petition. The tenant's costs were awarded for both the High Court and the Rent Control Tribunal proceedings.