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TMI Blog1992 (12) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... d her to file the present appeal. 3. Shri H.H. Phonda, the Ld. Adv. appeared for the applicant and Shri Ravindra Jain, the ld. JDR, appeared for the Respondent. 4. The case was heard on 24-11-1992. The Bench directed the Learned JDR to file an affidavit after getting the reply from the postal department as to the receipt of the impugned order by the appellant. 5. In the meanwhile, the applicant had filed an Affidavit dated 8-7-1992. In that affidavit, she avered that she is an illiterate lady and she was not aware of the said order till recently i.e. when her daughter Miss. Sunetra Salvi informed her about the visit of the official from the Tehsildar s office for recovery of the dues. She averred in the affidavit that personally she had no knowledge whatsoever about the gold, and the premises, and she has an excellent chance of succeeding in the appeal. Since she was not served with the impugned order and since the impugned order was handed over to her only by her daughter about four days back, she had filed the appeal in time. 6. Meanwhile, the Learned JDR Shri Ravindra Jain, filed an application before the Bench stating that a copy of the record of the uninsured registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiterated in the affidavit that Mr. Alimchandani never informed her about the impugned order and she has not received any such order sent by post by the authorities. 9. Shri H. H. Phonda, the Ld. Adv. for the applicant, contended before us that the impugned order was not served on the applicant at any time. She never had any knowledge and that she had filed an affidavit stating that she did not refuse to receive any such order from the postal authorities. He also pointed out that her son died on 19-4-1990 whereas the impugned order was passed on 17-4-1990. It was also contended before us that she came to know about the order only at the instance of her daughter and she on behalf of the applicant received order on her office address, i.e. by the Mah. State Co-op Bank. He also stated that when the applicant has on oath in terms of an affidavit stated that she at no time received the impugned order and she did not refuse to receive the same, the presumption arising under Section 114 of the Indian Evidence Act, stands rebutted. It was for the department to prove that the same was served on the applicant and she refused the same. In this connection he relied upon the decision of the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Alimchandani, who was representing the applicant reveals that he made a request to the Collector of Customs (Preventive) that he had appeared on behalf of Smt. Pushpa K. Salvi, Shri Madhusudan K. Salvi and Miss. Sunetra K. Salvi in the proceedings and he had not received any order in this behalf. He therefore requested the Collector through his letter dated 23-7-1990 to furnish him with a copy of the order. 13. The letter dated 7-8-1990 bearing No. S/14-5-385/88 was addressed by the Assistant Collector of Customs, Adjudication Cell, R I, Bombay to Mr. Alimchandani. As per his request dated 23-7-1990 the order-in-original was sent to him as desired. This clearly goes to show that the Ld. consultant who appeared on behalf of the applicant had received the order. Therefore, constructively it was received by the applicant herself through her consultant, who admittedly conducted the case on her behalf. An allegation is made against the Ld. consultant in the affidavit that he has never informed her about the same. This is an averment which is in the nature of a serious allegation against the consultant. When he has specifically asked for a copy of the order on behalf of his clie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter was not tendered to him. That can be done only by making oath. Hence unless the postman who tendered the letter is summoned and makes a statement that he tendered the summons and it was refused, the averment made by the party ought to be accepted. In the first instance, we find that this decision is not directly applicable, to the facts of this case. In that decision there was an endorsement made by the postman that the party concerned refused the notice. The party filed an affidavit that no such refusal was made. In those circumstances, their Lordships held that either side should have summoned the postman to prove this fact of tendering letter and the refusal by the party concerned. But in this case, there is no such refusal and the Post Office Journal produced goes to show that the letter was despatched to the applicant. There is a presumption under Section 114 of the Indian Evidence Act that such a letter was served on the party concerned. There is also an averment by the department that the letter was not returned. This averment of the department is not countered in the affidavit filed by the applicant. Further the applicant is not coming forth with clean hands before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding recorded by the trial Court as to the insufficiency of the evidence from the tenant has been accepted by the High Court. Thus there is a concurrent finding of fact that the notice has been refused." Applying the principle laid down in the above said decision, we find that a bare statement of the applicant that she has not received order in question is not sufficient to rebut the presumption of service on her. As held by the Hon ble Supreme Court we are of the opinion that there could be no hard and fast rules on this aspect. It is no doubt true that the unchallenged testimony of the applicant in certain cases may be sufficient to rebut the presumption but as already pointed out by us, the testimony of the applicant itself is inherently unreliable as is revealed in the facts and circumstances of this case as discussed by us above. We have considered the matter in detail and we had already come to the conclusion that no reliance could be placed on the untrustworthy affidavit filed by the applicant. Therefore in the facts and circumstances of this case, the presumption arising under Section 114 of the Indian Evidence Act is not rebutted by the applicant. That being the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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