Puran Chand vs Smt. Lajya Wati

Harbans Singh, C.J.—This is a revision u/s 15(5) of the East Punjab Urban Rent Restriction Act, 1949, filed by the tenant against an order of eviction passed against him by the Rent Controller in an application made in that behalf by the respondent which order has been confirmed by the Appellate Authority.

Ejectment was sought inter alia on the ground of personal requirement. The defence taken was that no notice u/s 106 of Transfer of Properly Act had been served and that the premises were not residential. Before me the Learned Counsel has urged that the finding with regard to the service of notice u/s 106 of the Transfer of Properly Act is wrong and vitiated and that being so, the revision has to be accepted and it is not necessary to go into the other points.

Reliance by the Courts below was placed on a registered notice sent by the Advocate of the landlord to the tenant. This registered notice is Exhibit AW5/1. On the back of it there is a note dated 18th July, 1969, apparently by the Postman to the following effect:-

Refused. Returned to the sendor.

This endorsement was taken to indicate that the notice was refused by the tenant and, consequently, it was treated as a proper service.

The Learned Counsel for the petitioner has urged that although such an endorsement by a public servant of the Postal Department may raise a presumption u/s 114 of the Evidence Act of the letter having been properly tendered but refused by the addressee. Such a presumption is not conclusive and can be rebutted by the addressee by coming into the witness-box and making statement that no such notice was ever tendered to him or refused by him. If such a statement is made, then the burden shifts to the other side and this statement can be controverted by summoning the postman who made the endorsement and it is only after the Postman is examined and cross-examined that the Court may come to a conclusion whether the registered letter was, in fact, properly tendered and refused. In case the Postman is not produced, then the statement of the addressee made on oath remains unrebutted and it cannot be held that the tender of the registered notice or its refusal has been established. The Learned Counsel referred to the statement of the tenant as R.W. 5. At the end of the examination-in-chief he has definitely sated as follows:-

I never received any notice nor did I ever refuse to accept such a notice.

The Postman was not examined and, consequently, this statement remains unchallenged.

On behalf of the respondent-landlord reliance was placed on the observations made by a Bench of this Court in Balbhadar Mal Kuthiala Vs. The Commissioner of Income Tax, Punjab Sapra, Himachal Pradesh and Bilaspur, Simla, , where dealing with presumption arising u/s 114 of the Evidence Act it was observed as follows:-

The presumption equally attaches to the postal peon''s report ''refused''. The fact that the letter came back does not in itself rebut the presumption that it was tendered. The writing of endorsement ''refused'' falls within the ambit of ''common course of business'' of the postman and, therefore, even without any formal proof, involves the presumption that it was written on a refusal by the addressee.

In paragraph 21 of the report, the Bench observed as under:-

Undoubtedly, the presumption is one of fact and rebuttable, it can never be regarded as conclusive........

The matter has been fully dealt with in the head-note of Meghji Kanji Patel Vs. Kundanman Chamanlal Mehtani, which runs as under:-

Where an ex-pane decree is passed after the writ of summons has been sent to a defendant by registered post and the cover containing the summons has been returned with the postal endorsement "refused", it is undoubtedly for the defendant to satisfy the court that the letter was not tendered to him. But the defendant can only do so by making a statement on oath. This must usually remain uncontroverted, unless the postman, who tendered the letter to him is summoned and makes a statement that he tendered the cover containing the summons to the defendant and after cross-examination, his evidence is believed. If the plaintiff does not summon the postman, the statement on oath of the defendant remains uncontroverted and in such a case there is sufficient ground for setting aside the ex-parte decree.

An earlier decision of the Chief Justice of that Court in Appabhai Motibhai Vs. Laxmichand Zaverchand and Co., was followed. I am in respectful agreement with these observations.

In view of the above, therefore, it must be held in this case that the presumption that has arisen from the endorsement of the Postman on the back of the registered notice stands rebutted by the statement on oath of the tenant and that statement has not been controverted. That being the case, it cannot be held that the notice has been proved to have been served. Consequently, I accept this revision, set aside the orders of the Courts below and the petition for ejectment is dismissed In the peculiar circumstances of the case, there will be no order as to costs throughout.