Munshi Ram and Another vs Shakuntala Devi

Mian Jalal-ud-din Ag., C.J.—These two revisions are directed against an order of remand in suits for ejectment passed by the Sub Judge

(CJM) Jammu on 26-10-1974. As a common question of fact and law has been raised in both the revisions, so this judgment will dispose of both

of them.

Briefly speaking the Plaintiff brought two suits for ejectment against Munshi Ram and Mulk Raj in respect of shops situate at Mohalla Ustad she

averred that she had purchased four shops by virtue of a registered sale deed. Out of these four shops two were leased out to the Defendants. The

Plaintiff claimed that she required the shops for purposes of rebuilding as the shops were old and in a dilapidated condition. She further stated that

after rebuilding she wanted the shops for her personal use as one of her sons had to start his own business in the shop who was without any work

and was dependent upon her for his livelihood. Her further case was that she served notices of ejectment on the Defendants through registered

post as was apparent from the acknowledgments duly signed by the Defendants. The suits were resisted on various grounds. The trial court raised

a number of issues and decided all the issues excepting Issue of notice in favour of the Plaintiff. The trial court held that the Plaintiff had failed to

prove that notices had been issued to the Defendants requiring there to surrender possession of the shop. The suits of the Plaintiffs were

consequently dismissed on this ground. Aggrieved by the judgments and decrees of trial court, the Plaintiff went up in separate appeals before the

learned Sub-Judge, (CJM) Jammu. Before the lower appellate court, applications under Order 41, Rule 27, CPC were moved by the Plaintiff for

leave to produce evidence to prove the subject-matter of issue of notices. She submitted that notices for ejectment were posted by mail. These

notices were received by Defendants-Respondents and acknowledgments were duly signed by them. It was expected that the trial court would

draw a presumption from the proved facts that the notices were delivered in the due course of postal service. In that view of the matter, the Plaintiff

was not required to produce any evidence to substantiate this fact; but because of an authority the Justice Anant Singh, an ad hoc Judge (sic) this

Court, which held that service (sic) notice must be proved by producing evidence and no presumption can be draw under law, the trial Judge

decided issue of notice against her. According to the Plaintiff, it was not possible for the appellate court to reach at a correct conclusion as to the

service of notice, as (sic) presumption could be drawn according to the aforesaid authority. Therefore she prayed that she be allowed to p(sic)

duce witnesses to prove service of notice. This application was resisted by the Respondent on the ground that the Plaintiff had sufficient time, to

lead evidence prove issue of notice, the onus of which was upon her. The application was intended to fill up the lacuna which could not be allowed.

The learned appellate court, however, agreed with the Plaintiff that it was a fit case where the court should exercise its power in favour of allowing

the Plaintiff to produce evidence in order to substantiate this issue. The learned court accordingly allowed the application and permitted the Plaintiff

to adduce additional evidence in order to prove service of notice on the Defendants subject to payment of costs. The learned Judge set aside the

finding on the issues relating to notices and directed the trial court to give fresh finding thereon after recording additional evidence led by the

parties. Aggrieved by this order of the remand, the Defendants have come (sic)p in revision before this Court.

Learned Counsel appearing for the Petitioners has argued that the lower appellate court had illegally exercised its jurisdiction in the matter of

allowing the Plaintiff to produce additional evidence the terms of Order 41, Rule 27, CPC Learned Counsel submitted that the onus of (sic)ese

issues was on the Plaintiff and, therefore, it was her duty to produce evidence thereon. But as she failed to produce evidence, the only course left

open to the trial Court was to record finding on these issues against the Plaintiff the lower appellate court could not (sic)l up the lacuna in the case

by allowing the Plaintiff to produce additional evidence, According to the learned Counsel the presumption to be drawn u/s 114 of the Evidence

Act was rebutble. As the Defendants had denied the receipt of notices, therefore, there was (sic) question of drawing any presumption (sic) the

case and it, therefore, lay (sic)avily on the Plaintiff to discharge the (sic)us which she indeed had failed to discharge.

Shri T.C. Kotwal appearing for the Plaintiff Respondent has, on the other hand, submitted that the view taken by Anant Singh J. needs to be

reconsidered. He has submitted that u/s 114 of the Evidence Act read with Section 27 of the General Clauses Act a presumption arises high

regard to the notice sent by mail. (sic) sending of notice by mail and the endorsement on the acknowledgement con(sic)ute official acts and these

shall have be presumed to have been done in the ordinary course of business. In support his argument he has relied on the observations made by

this Court in Harjeet Singh v. Parshotam Dass reported in AIR 1977 NOC 335 Point (E) (J and K) and also Ganga Ram Vs. Smt. Phulwati, .

Learned Counsel has submitted that because of the legal presumption to be drawn no obligation was cast on the Plaintiff to have produced any

evidence in the trial court on this issue. However, for doing justice in the case, it was within the power of the lower appellate court to allow the

Appellant to produce evidence on this issue and the power of the lower appellate court was not fettered in any way in arriving at a just decision.

To me it appears that during the course of the trial of the case, the Plaintiff has felt somewhat confused as regards her legal obligation to prove

the fact of service of the notice on the Defendants. In my opinion, presumption u/s 114 of the Evidence Act and Section 27 of the General Clauses

Act, can be raised only if it was shown that the notice gave correct particulars of the addressee on the notices and on the forms of

acknowledgment. Here the Defendant had categorically denied the receipt of any notice and had denied to have signed the acknowledgement. It

was, therefore, that the trial court placed the onus of the issue on the Plaintiff. The presumption that can be drawn u/s 114 of the Evidence Act and

Section 27 of the General Clauses Act is, indeed, rebuttable. The lower appellate court however, felt that the ruling of Anant Singh J. had created

difficulty in the way of the Plaintiff. When all the material issues were decided in favour of the Plaintiff and the suit was thrown out only on the

technical issue of notice, it was, therefore, a fit case where it should exercise its power under Rule 27. Now under Rule 27 the appellate court has

got power to allow additional evidence not only if it requires such evidence to enable it to pronounce the judgment but also for any other sufficient

cause. According to the observations of their Lordships of the Supreme Court, in K. Venkataramiah Vs. A. Seetharama Reddy and Others, ,

there may well be cases where even though the court finds that it is able to pronounce judgment on the state of record, yet if it is of the view that it

still considers that in the interest of justice, something that had remained obscure should be filled up so that it can pronounce judgment in a more

satisfactory manner, then in that case, the appellate court can ask for additional evidence. Another observation made in Raja Kamala Ranjan Roy

Vs. Baijnath Bajoria, is to the effect that where the first appellate court allows the Appellant to produce additional evidence to clear up certain

matter for the purpose of enabling it to come to a proper decision, the appellate court in second appeal will not interfere in the exercise of that

discretion. On this touchstone of reasoning, it is clear that the present cases are ones in which the lower appellate court has properly exercised its

discretion and power in allowing the Plaintiff to produce additional evidence. As in the case before it, there was no evidence on record on the issue

of notice, the appellate court felt that in order to clear the obscure position and also to do complete justice in the case, it was necessary to allow

the reception of additional evidence. In that view of the matter, the only course open to the learned Sub Judge (CJM) was to remit the issue to the

trial court and allow the Plaintiff to produce evidence on this issue. I, therefore, do not find that the lower appellate court has passed an illegal

order in the case. The contention of the Petitioner is, therefore, overruled.

There is yet Anr. aspect of the matter. The view expressed in 1970 Ren CJ 940 : AIR 1971 J and K 20 by Anant Singh J. and acted upon by

the trial court lays down a broad proposition of law. The decision rendered in that case altogether ignores the effect of Section 114(c) and Section

27 of the General Clauses Act. In that view of the matter, it is observed that the view laid down that even in cases in which notice is sent in due

course of postal notice on the correct address of the addressee the fact of despatch of notice must be proved, requires reconsideration, I

respectfully do not, therefore, agree with this view of the learned Judge. Of course, the presumption to be drawn is rebuttable and can be rebutted

by producing evidence.

Again in AIR 1970 Pat 266, the view has been laid down by a Division Bench of the Patna High Court, that the High Court will refuse to

interfere in exercise of its power u/s 115 even where lower appellate court has committed a legal error in ordering additional evidence.

The result is that there is no force in these revision petitions which are hereby dismissed. The parties will appear before the trial court on December

30, 1977.