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TMI Blog1970 (3) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... hree points (mentioned hereinafter) for the consideration of a larger Bench, The Division Bench before which this appeal was listed noticed that there was some conflict of opinion in two decisions given by the two Division Benches of this Court during the last two years. In the case of Budhu v. Smt. Kamla Narain, 1968 All LJ 707 it was held by a Division Bench of this Court that a presumption about the service of such notice could be raised under Section 114 of the Indian Evidence Act, and, when so raised, will be a presumption of fact On the other hand it was held in the case of Dwarka Singh v. Ratan Singh Ahuja, 1969 All WR (HC) 477 = 1969 All LJ 849 that in a case like this a presumption with regard to service of notice will have to be raised under Section 27 of the General Clauses Act, and that will be a presumption of law. The following three points, originally formulated by the learned single Judge, have, therefore, come up for consideration before this Full Bench :-- (1) Whether a notice under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, even if combined with a notice under Section 106 of the Transfer of Property Act, has to be served on the tenant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 64 (1) read as follows:-- 62. A receipt shall be given to the person who presents an article for registration at the post office window during the hours prescribed for posting registered articles. 63. No registered article shall be delivered to the addressee unless and until he or his agent has signed a receipt for it in such form, as the Director-General shall prescribe. 64(1). If the sender of a registered article pays at the time of posting the article a fee of one anna in addition to the postage and registration fee, there shall be sent to him on the delivery of the article a form of acknowledgment which shall be signed by the addressee or if the addressee refuses to sign shall be accompanied by a statement to the effect that the addressee has refused to sign. A perusal of the relevant provisions of the Posts and Telegraphs Manual, Vol. I, would indicate the working in the post offices. Paragraphs 183, 191 and 195 of the Manual may be examined. Paragraph 183 deals with receipts, acknowledgments and undelivered articles taken from postman. The relevant portion of sub-para (1) of paragraph 183 reads as follows :-- The receipts (Form R. P. 31) and acknowledgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of a notice under Section 106 of the Transfer of Property Act, after that notice has been duly despatched through the post office by registered post to the correct address of the tenant, a presumption about due service of that notice can be made under illustrations (e) and (f) of Section 114 of the Indian Evidence Act, which reads as follows:-- 114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. Illustrations : The Court may presume- (e) that judicial and official acts have been regularly performed; (g) that the common course of business has been followed in particular cases............... 12. When a registered article or a registered letter is handed over to an accepting or receiving post office, it is the official duty of the postal authorities to make delivery of It to the addressee. Human experience shows that except in a few exceptional cases letters or articles received by the post office are duly, regularly and properly taken to the addressee. Consequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 17. Section 106 of the Transfer of Property Act provides for a mode of service of the notice and, therefore, the provisions of Section 27 of the General Clauses Act, shall apply, and once it is established that a registered notice was delivered at the receiving post office containing the correct address of the tenant, a presumption of law can be made that the notice has been served on the addressee. 18. Section 106 of the Transfer of Property Act was amended in the year 1929 by Act XX of 1929. The view taken by our High Court in all the cases decided after the year 1929 is consistently in favour of what we have said in the preceding paragraphs. 19. It was held by a learned single Judge in the case of Bachcha Lal v. Lachman, AIR 1938 All 388 that in a case of notice under Section 106 of the Transfer of Property Act the presumption of law with regard to service of notice will arise under Section 27 of the General Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence Act is that in the former case a presumption has got to be made by the Court, while in the latter case, i.e., under Section 114 of the Indian Evidence Act it may or may not be made according to the facts and circumstances, of each case. However, even a presumption of law is rebuttable unless it is made unrebuttable by some provision of law. A presumption of law to be raised under Section 27 of the General Clauses Act has not been made unrebuttable. 24. The High Courts of Calcutta, Lahore, Punjab and Madras have taken the view that a presumption of fact can be drawn even after such a registered notice is received back by the sender with an endorsement Refused . In the two Lahore cases of Sher Afzal v. Mohan Lal, AIR 1926 Lah 520 and Raunaq Ram v. Prabhu Dayal. AIR 1930 Lah 439 the view taken was that the presumption of service can be made even where the letter is received back by the sender with such endorsement. 25. It was held in the case of Nirmala-bala Debi v. Provat Kumar Basu, (1948) 52 Cal WN 659 that in such a case a presumption of service of notice arises and the postman need not be examined to prove the endorsement. A similar view was taken in the case of Bapay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be expected to reach him in the ordinary course. With great respect, and for the reasons given by us, we do not find it possible to agree with the views expressed in the abovementioned cases decided by the Bombay, Madhya Bharat and Nagpur High Courts. 29. It has been further contended by the learned counsel for the appellant that although a presumption under Section 27, General Clauses Act, may be made in respect of a notice under Section 106 of the Transfer of Property Act, it cannot be made in respect of a notice under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, and, therefore, where a combined notice under Section 106 of the Transfer of Property Act, and Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act is sent, a presumption should be raised only under Section 114 of the Indian Evidence Act, and not under Section 27 of the General Clauses Act. 30. In our opinion there is no force in this contention. A combined notice under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act and Section 106 of the Transfer of Property Act is permissible under law. A presumption under Section 27 of the General Clauses Act has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the provisions of Section 27 of the General Clauses Act, or presumed to have been made on him under Section 114 of the Indian Evidence Act. 33. The fact that the notice was returned back to the sender with an endorsement Refused does not in our opinion, dislodge the presumption that the registered notice had reached the addressee. On the other hand, it strengthens the presumption that the notice had reached the addressee. It could not be delivered to him because he refused to accept it. 34. In view of what we have stated above, we proceed to answer as follows the three questions referred to the Full Bench:-- Question Our Reply 1. Whether a notice under S. 3 of the U. P. (Temporary) Control of Rent and Eviction Act, even if combined with a notice under S. 109 of the Transfer of Property Act, has to be served on the tenant personally? 1. The answer is in the negative. Even a notice of demand deemed or presumed to have been served on a tenant will be service upon him of notice of demand . 2. Whether it is incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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