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TMI Blog1975 (9) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... ement "refused" and stated on oath that the notice was sent to the tenant under the postal cover which was returned with the aforesaid endorsement. On the other hand the tenant stated on oath that he never received the notice and that the cover was neither tendered to him nor was there any occasion for him to refuse to take delivery. A plea was raised on behalf of the landlord that presumption of service must be raised by virtue of clause (f) of section 114 of the Evidence Act. On behalf of the tenant, it was contended that the persumption had been rebutted by his statement on oath denying the tender and the refusal of the postal cover and that in view of the rebutal, service of notice could not be presumed in the absence of evidence of actual tender and refusal. The plea of the tenant prevailed with the Addl. Rent Controller and the petition was accordingly dismissed. The landlord's appeal against the order was, however, allowed by the Rent Control Tribunal and it was held that although the presumption under section 114 of the Evidence Act was rebutable, the bare statement of the tenant was insufficient to rebut the presumption. The contention of the tenant that no o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the original order. The appeal was accordingly filed within time and the objection is overruled. (4) On the merits, Shri Nayyar, learned counsel for the tenant contends that no presumption, either of fact or of law, with regard to the service of notice could have been raised in the absence of evidence of the postman that the postal cover containing the notice had been tendered to the tenant and its delivery was refused by him. He further contends that in any event, the tender of the postal cover and its refusal by the tenant having been denied by the tenant on oath at the trial of the petition, the presumption, if any stood rebutted reverting the onus on the landlord to establish by appropriate evidence that the postal cover has in fact been tendered to the tenant and its delivery was refused by him? Reliance was placed on Appabhal Motibhai v. Laxmichand Zaverchand and Co, Sundaram v. Sesh Aiyar Mahadeya Aiyar, Radha Kishan v State of Uttar Pradesh, Meghji Kenji Patel. Kundanmal Chamanlal Mehtanti, Parshotam Lal v. Kalyan Singh and another, and Shrimati Bhagwanti v. Waryam Singh". (5) On the other hand learned counsel for the landlord contends that on the material placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation to the facts of the particular case". According to illustration(f) to the Section, the Court may presume ''that the common course of business has been followed in particular cases". It further provides that in considering whether common course of business had been followed or not, the Court shall also have regard to such facts as are set out in relation to each of the illustrations. The fact relevent to illustration (f) runs thus : "The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances", Section 114, therefore, entitles a Court to presume that a common course of business was follower so that if it is proved a postal cover duly addressed was sent by registered A.D. post, having regard to the common course of events, it would have been received by the addressee or if it is returned with the endorsement by the postal authorities that it was refused, that it was so tendered and refused. This would raise a presumption of fact which the Court may, but is not bound to raise. If however, it is shown at the same time that the common course was interruped by an extr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct tendered and its delivery was refused, could not, therefore, bs accepted None of the numerous decisions cited at the bar on behalf of the tenant would appear to me to support such a proposition. This contention must, therefore, be rejected, and I have no hesitation in holding that on the material placed on the record before Controller, a presumption of service arose both under section 114 of the Evidence Act, as indeed, under 27 of the General Clauses Act. (8) What then is the impact of the oral testimony of the tenant denying the tender and the refusal to accept delivery on the presumption of service that thus arose ? This question, my mind, must be answered in favor of the tenant. It is well settled that the presumption of fact under section 114 of the Evidence Act, as indeed, the presumption of law under section 27 of the General Clauses Act, are not irrebuttable but, on the contrary, are rebuttable. This is so because neither of the two presumptions are conclusive but only dispenses with the need of evidence and could not, therefore, be placed at a pedestal higher than evidence itself. If oral and documentary evidence, produced by litigant in a cause could be rebutted by ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was pointed out that no relation of the tenant had been produced to say that the postal cover was never tendered. In Koshilal Agarwalla (supra) also, there was a mere plea of denial but no statement on oath in support of it. In Dwarka Singh (supra) likwise, there was no statement denying the tender. In Ganga Ram, (supra), there was no denial of tender although the postman was examined and was unable to identify the addressee. (10) The only decision which appears to have taken the view convassed on behalf of the landlord is of Smt. Muni Devi (supra). The decision in that case, however, turned on the peculiar facts of that case. The tenant stated on oath in that case that during the material period, she was away from house and this evidence was sought to be supported by the evidence of two witnesses. Both the Courts below had declined to accept the evidence because of its discrepant nature and the High Court cencurred with their conclusion. It was pointed out that "the defendant's denial on oath is, by itself, hardly sufficient particularly, having regard to the a !ure of that denial in the present case". I am unable to read this decision as an authority for the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hift that the onus on the other side to establish by evidence that the service had been duly effected. It is, therefore, not possible to accept the contention that the bare statement on oath the addresnee in such a case would not, as a matter of law, be sufficient to dislodge the presumption that may bo raised either under Section 114 of the Evidence Actor under section 27 of the General Clauses Act. A statement on oath of a party to the proceedings is a piece of oral evidence like statement of any other witness and there is no rule of law that such a statement should not be accepted merely because it is made by a person who is interested in the proceeding nor is there any requirement of law that the statement on oath of a party to the proceeding must always be coroborated by any independent evidence before it could be accepted by a Court of law. It is not possible to lay down any hard and fast rule of law with regard to sufficiency of evidence. If a statement of a party on oath inspires confidence, the Court is entitled to accept it and base its conclusion on it. Learned counsel for the landlord has not been able to point out any discrepancy in the statement or any other feature o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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